
    Charles B. Cartwright, Resp’t, v. Rome, Watertown and Ogdensburg Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    Carriers—Loss of perishable goods.
    A carrier is liable for loss of perishable goods caused by delay in transporting them, where it receives them from a connecting line and detains them in the same cars in which they are received, until repairs ordered by its inspector are made.
    Appeal from a judgment of the county court, affirming a judgment of the justice’s court in favor of plaintiff.
    
      George L. Walker, for app'lt; Hugh McKay, for resp’t.
   Ward, J.

The trial was held in a justice’s court of Monroe county on the 20th of July, 1893, before the justice without a jury. Judgment was rendered against the defendants (now appellants) for $84.02. The complaint alleged that on the 13th of October, 1892, the defendants ’received from the Buffalo, Rochester and Pittsburgh Railway Company, for the plaintiff, 114 sacks of milkweed pods, of the value of $85.50, property of the plaintiff, which they, for a reasonable compensation to be paid to them, agreed to carry and deliver to Webster, N. Y., within a reasonable time after the receipt; that the defendants failed to so deliver, but had so negligently and carelessly treated the property, that it had become decayed and worthless, as well as the sacks containing the same, to the plaintiff’s damage, etc. All the allegations of the complaint were denied by the defendants, except the facts of their incorporation.

There was evidence before the justice tending to establish these facts: That the plaintiff resided at Webster, N. Y., which is upon a line of the defendant’s road, and was engaged in the manufacture of milkweed balls and artificial flowers from milkweed pods; that on the 12th of October, 1892, he caused to be delivered to the Buffalo, Rochester and Pittsburgh Railway Company, at their Pearl Creek station, and at a distance of about .fifty miles from Charlotte, seventy-five sacks of milkweed pods, containing three bushels in a sack, for which he took receipts of the company for shipment to Webster, hi. Y., over their line to Charlotte, and thence by the defendants’ road to Webster. The freight was in good order when delivered to this company, and on account of its being perishable the plaintiff was charged first-class freight; being an increase over ordinary freight not perishable. Forty of these sacks were shipped in one car to Charlotte, and thirty-five in another. These two cars reached Charlotte on the 14th of October, at three T. M., having been shipped on the 13th. The cars were placed upon the siding where deliveries are made from this Buffalo, Rochester and Pittsburgh Railroad to the defendants, the defendants connecting their road at that place with the Buffalo, Cochester and Pittsburgh. The conductors having charge of these cars immediately reported, on the 14th, to the proper officer of the defendants at Charlotte, and delivered what is called a “ through way bill ” of the freight of each car from Pearl Creek, N. Y, to Webster, 1ST. Y, stating the time of shipment from Pearl Creek; the time of arrival at Charlotte ; the name of consignee and point of destination; the weight of the articles; the rate of freight, which was first-class,—and described the articles as “ Sks. milkweed pods, 0. R,” and number of sacks, and gave the divisions of earnings between the Buffalo, Rochester and Pittsburgh Railway Company and the defendants for carrying this freight, which were equal. Without removing the freight from the cars, the defendants directed an employe, who was a car inspector, to examine these cars, which he did, and pronounced them in need of repairs, which, under the arrangement between the two companies, was to be done by the Buffalo, Rochester and Pittsburgh Railway Company. This it took from the 14th of October to the 19th of October to accomplish, and then the defendants passed those cars, with the freight, over their line, about eleven miles, to Webster, where they were delivered to the plaintiff on the 20th of October. The pods and the sacks in which they were contained were then found rotten and valueless. The plaintiff paid the freight $12, and recovered that, with the value of the pods in good order. Upon appeal the justice’s judgment was sustained by the county court, and the defendants again appealed, and are here with two objections: First, that the destruction of the freight was not due to the defendant’s negligence, but the delay was caused by the action of the initial company, the receiving company not being liable therefor; second, that the proof does not disclose that the freight decayed while in the possession of the defendants. The appeal, therefore, is purely upon questions of fact, which has rendered a somewhat extended statement of the facts and evidence necessary.

The justice’s court found as a fact that the loss was due to the negligence of the defendants; - and if the evidence, or the inferences therefrom, tend to support the conclusions of that court, they cannot be disturbed here. Assuming that the defendants became responsible in regard to this freight at the time that it reached Charlotte and the way-bill was passed to the defendants, and they took charge of the cars and inspected them, it is apparent that six of the eight days which occurred from the time of the delivery of the freight to the initial company to its receipt by the plaintiff from the receiving company occurred while the defendants were responsible for the freight, in whole or in part, and the justice’s court might very well infer that the injury to the freight occurred during the six days.

The serious question in the case, however, is raised by the first objection. What was the duty of the defendants, in this regard, upon the arrival of the freight at the siding at Charlotte ? By section 34 of chapter 676 of the Laws of 1892, it is provided that every railroad corporation “shall furnish sufficient accommodations for the transportation of all passengers. and property which shall be offered for transportation at the place of starting within a reasonable time previously thereto, and at the junctions with other railroads, and at the usual stopping places established for receiving and discharging way passengers and freight,” etc. The defendants are common carriers. They had a traffic arrangement with the initial road in regard to the carrying of freight. They shared with this road in the profits of such carriage. They had notice of the arrival of this freight at the place where it was their duty to receive it, and from the nature of the freight specified in the “ through waybill,” and the rate charged, the justice’s court had a right to find that they knew it was perishable. They also knew that they were sharing in the profits of carrying this perishable freight at advanced rates. They had the right to take this freight, and transport it in other cars. It was their duty to do so, rather than let it remain five or six days, until the cars were repaired in which it came, and during which time, from the nature of the freight, it was liable to be destroyed. The defendants cannot shelter themselves from the responsibility, under the arrangement with the initial company that it should repair the cars when their inspector pronounced them defective. Arailroad company receiving perishable property for transportation. is bound to forward it immediately "to its destination. This was their obligation at common law. Tierney v. Railroad Co., 76 N. Y. 308. At the time of the decision in this case, there was a statute in force imposing that duty (chapter 140, section 36, Laws 1850), which was repealed by the railroad act of 1892, but the common-law obligation still remains. In Insurance Co. v. Wheeler, 49 N. Y. 616, the defendants were operating a railroad running east" from Ogdensburg. The Northern Transportation Company, operating a line of propellers on the G-reat Lakes, and connecting with the defendants’ road at Ogdensburg, and having a traffic arrangement with the defendants, delivered a quantity of flour ata warehouse in Ogdensburg used in common by the two concerns, the expense of handling being paid in common. Held, that a delivery to this warehouse by the transportation company, with notice of the arrival of the flour, placed it in the possession of the defendants, and imposed upon them the duties and liabilities of a common carrier with reference thereto. A stronger case in this direction is Mills v. Railroad Co., 45 N. Y. 622. In Livingston v. Railroad Co., 76 N. Y. 631, 632, the court ■sustain the submission to the jury, by the trial court, whether the .sending of the waybills to the defendant, in a case very much like this in its leading features, did not put upon the defendant the responsibility of taking care of the goods and seeing that they were forwarded, and whether there was unreasonable delay on the part of the defendant—the same question of fact submitted to the justice’s court in this instance. The through waybill was the history of the transit of the freight, made up for both railroad companies, governing the transit, and defining the rights of the connecting corporations with reference to this freight; and upon its receipt by the defendants, it being at the place of connection, and subject to the defendants’ control, the duty-wasimposed upon them to receive and transport the freight within reasonable time, considering its character, to the place of destination; and, the trial ■court having found the defendants negligent in this regard, the judgment should be affirmed, with costs.

All concur.  