
    Powers vs. Mitchell.
    A warehouseman is liable for the negligent injury of goods stored with him for hire, though it appear that, after the happening of the injury, the goods were destroyed without his fault, and that they must have been so destroyed even if no damage had previously occurred.
    Case against a warehouseman, tried at the Albany circuit, in October, 1840, before Cushman, C. Judge. It appeared on the trial that, in December, 1838, several boxes of furniture, clothing, &c. belonging to the plaintiff, and worth $570,89, were deposited with the defendant, a warehouseman and oil merchant, to be stored for hire. The goods were placed in a lower room of the defendant’s store, situate on the wharf at Albany, and while remaining there were seriously injured by the drippings of oil from leaky casks in the second story. Afterwards, on the 26th of January, 1839, the goods were nearly destroyed by a sudden freshet which caused the water of the river to rise and flow into the room where they were deposited. Every exertion was made by men in the defendant’s employ to save the goods from injury. The circuit judge charged the jury that the defendant was only bound to exercise ordinary care and diligence, and if they were satisfied he had don e so in endeavoring to save the goods from injury by the flood, and that the flood had caused the damage complained of, they should find for the defendant. The judge further charged, that if the jury were satisfied the goods had been injured before the freshet, and that such injury resulted from the defendant’s negligence, the plaintiff was entitled to a verdict for the full amount of damages consequent upon such injury. The defendant’s counsel excepted to the charge, and requested the judge to instruct the jury that, though they believed the goods were injured through the negligence of the defendant, by the dripping of the oil; yet if they were satisfied that the water, and the oil driven out of the casks and into the goods, at the time of the flood, would have iniured the goods as much as they finally were injured, and that in fact they were as valuable after the flood as they would have been if the oil had not previously flowed upon them, and also believed that the defendant had used ordinary care in endeavoring to protect the goods from injury by the flood, the plaintiff was not entitled to recover. The judge refused to charge as requested, and the defendant’s counsel excepted. The jury rendered a verdict in favor of the plaintiff for $382,66; and the defendant now moved for a new trial on a bill of exceptions.
    
      C. M. Jenkins} for the defendant.
    
      O. A. Kingsley, for the plaintiff.
   By the Courts Nelson, Ch. J.

The learned judge was undoubtedly right in refusing to charge as requested. The defendant was no more released from liability for the injury resulting from his negligence before the flood, than he would have been under like circumstances if he had carelessly permitted the goods to be stolen or burned. In such an event he might have contended with as much propriety as in the present case, that he ought not to be held responsible for the consequences of his own neglect, because the goods would have been destroyed by the flood if no loss or damage had previously occurred. It cannot be denied that a cause of action to recover the full amount of damages that had already been sustained, existed before and at the time of the destruction by the flood ; and unless the defendant can find some principle which will enable him to plead the flood in bar of an action for his own previous wrong, his liability must still continue. The flood may excuse the defendant from liability for injuries happening through its agency, but nothing further. He must answer for such as had previously accrued by means of his own misconduct.

New trial denied.  