
    (89 Hun, 202.)
    BOUKER v. LONG ISLAND R. CO.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Carriers—Failure to Transport Freight.
    Delay in transporting goods, in the absence of a special agreement for carriage, caused merely by the fact that the carrier’s apparatus for loading, ordinarily sufficient, was not adequate for the time, owing to the unusual quantity of goods for shipment, is not actionable.
    Appeal from circuit court, Queens county.
    Action by De Witt 0. Bouker, Jr., against the Long Island Railroad Company. From a judgment dismissing the complaint as to one cause of action, and from an order denying a new trial, plaintiff appeals. Affirmed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    George Wallace, for appellant.
    William J. Kelly, for respondent.
   DYKMAN, J.

The complaint of the plaintiff in this suit contains two causes of action. The first cause of action is against the defendant, as a common carrier, for having wrongfully neglected and refused to transport certain stone delivered to it by the plaintiff, the allegation being that by reason of this wrongful act on the part of the defendant he was prevented from completing in proper time a contract which he had in hand for macadamizing certain highways in Queens county. For the second cause of action the allegation in the complaint was that, at different times between December 7th and December 14th, the plaintiff shipped over the defendant’s railroad 20 carloads of stone, to be delivered at Arverne, a station on the line of defendant’s railroad; that the stone was not delivered to the plaintiff, although he had paid the freight charges on the 15 carloads first forwarded, and tendered payment on the last 5 carloads forwarded, and demanded that the stone be delivered at Arverne as directed, and that the defendant had neglected to deliver. Upon the trial at the circuit, before a jury, at the close of the testimony on the part of the plaintiff, the counsel for the defendant moved to dismiss the complaint, on the ground that the plaintiff had failed to make out a cause of action against the defendant, as the evidence failed to show any undertaking on the part of the defendant to transport any given number of stones per day, and that the plaintiff failed to show any discrimination against him by the defendant or any of its departments, or the violation of the duties of the defendant as a common carrier, by shipping and transporting the stone from Long Island City to the vicinity of the plaintiff’s contract. That motion was made with reference to the first cause of action. The motion was denied, and the defendant excepted. After the introduction of some testimony on the part of the defendant, and at the close of the case, the counsel for the defendant renewed the motion, made at the close of the plaintiff’s case, to dis-' miss the complaint upon the same grounds as there stated in regard to the first cause of action, and on the ground that it then appeared affirmatively that the defendant had exercised due diligence in the transportation of freight, and the court granted the motion as to the first cause of action, but permitted the claim under the second cause of action to be submitted to the jury for determination. The plaintiff excepted to the ruling of the court granting the dismissal of the complaint as to the first cause of action. The court then charged the jury in reference to the second cause of action, and a verdict was rendered in favor of the plaintiff for $510.08. The plaintiff thereupon moved for a new trial in regard to the issues contained in the first cause of action, and the defendant moved for a new trial on the ground of the issues contained in the second cause of action. The motion made by the plaintiff for a new trial was denied, and the motion made by the defendant for a new trial was denied also. The plaintiff appealed to the general term from that part of the judgment entered in this action dismissing the plaintiff’s complaint as to the first cause of action, and the defendant has not appealed.

The only question, therefore, for consideration upon this appeal has reference to the dismissal of the complaint as to the first cause of action which it contained. While railroad companies are in a certain sense to be regarded as trading corporations, they are, at the same time, clothed with useful public functions. Their franchises are sovereign, and their uses are public. They are compellable to use their property in the interests of the entire community, and it is their duty to furnish accommodations for the transportation of persons and property. The acceptance of a charter by a corporation constitutes an implied contract on its part for the performance of certain public functions. Actions for damages may be .maintained for a breach of such implied contract. In fact, a railroad may be viewed as a public highway under the control of a corporate body which has assumed obligations to carry persons and property in consideration of exclusive rights to control the public thoroughfare. Such are some of the well-established rules in relation to common carriers and property, but, like all legal rules, they are to be construed and applied reasonably, and in the light of all the surrounding circumstances. If a large number of passengers demanded carriage at a given point, where a railroad had not sufficient cars to comply with their request, no negligence could be assigned, and no action for damages maintained. If a large quantity of property was presented to a carrier for transportation when it had not sufficient cars to carry it at that time and place, no negligence could be assigned for a failure to do so. Ang. Carr. § 125. In this case there was no special agreement for the transportation of stone. The liability of the defendant must be measured by the duty imposéd upon it. by law. The delay was in unloading the stone from the scows, and the evidence makes it entirely clear that there was no negligence or undue delay. The defendant had 10 derricks at the dock, and sometimes 6 were employed upon the stone. There was an unusual collection of property for transportation in consequence of the unprecedented amount of macadamizing done in and around Hempstead in 1892 and 1893. Sometimes 30 scows were at the dock at a time, 10 or 15 of which would be loaded with stone. After the stone was loaded, there was no unnecessary delay. In fact-it appears from the testimony of the plaintiff that the stone was sent forward faster than he unloaded them from the cars. Railroad corporations have the right to prescribe the times for the reception of freight for transportation. Due care and diligence is all that can be required of them in an emergency. If they are careful to make provision for the traffic upon their roads in ordinary times and under ordinary circumstances, no more can be required of them, and they should be excused for delay.

“The law contemplates that it may not always be in the power of a railroad company to dispatch either passengers or freight immediately upon their arrival at a station or junction, and it therefore allows the company a reasonable time after their arrival and the offer of property for transportation to set it in motion from such starting point or junction. What is a reasonable period must depend upon the actual circumstances existing at the time the property is offered for transportation.’’ Wibert v. Railroad Co., 12 N. Y. 250.

It does not appear from the testimony in this action that there was any failure on the part of the defendant to furnish ample rolling stock for transportation of passengers and freight under all ordinary circumstances and conditions, and it does appear affirmatively that extraordinary conditions prevailed during the time in respect to which this complaint is made against the defendant. Large and unusual quantities of freight were offered for shipment, and the defendant utilized all its facilities for the purpose of transporting the property offered to it for that purpose, including the stone offered by the plaintiff. There was no substantial dispute about the facts, and so the question whether the defendant was guilty of unnecessary delay was for the court. Muckle v. Railway Co., 79 Hun, 32, 29 N. Y. Supp. 732. In our view the proper disposition was made of the question, and the facts fail to show any negligence or want of care on the part of the defendant, and the complaint was properly dismissed in respect to the first cause of action which it contained, and the judgment and motion for a new trial should in all respects be affirmed, with costs. All concur.  