
    The Jackson Architectural Iron Works, Respondent, v. Henry Hurlburt et al., Appellants.
    (New York Common Pleas—General Term,
    December, 1895.)
    1. Common carriers — General truckmen.
    A general truckman who undertakes to transport goods from place to place for such as choose to employ him is a common carrier, although he has a specialty and no fixed scale of charges, a special price being fixed by agreement in .each case.
    • S. Same — Liability por injuries to goods. ■
    The mere fact that the owner of a heavy article insists upon its being taken into the house in the evening, and not left in the street during • the night, does not excuse the carrier from liability for injuries done to such article during its removal on account of the darkness, where no act of tile former prevented the procurement of lights.
    3. Damages-- Evidence.
    In an action to recover for injuries to a planing machine, proof of the cost to plaintiff of work which he.was obliged to have done out of ' his shop while the machine was disabled, and before it could be repaired, is admissible.
    Appeal by defendants ■ from a judgment of'this court, entered on the verdict of a jury in favor of the plaintiff, for $500, with costs.
    The action was brought to recover $1,Y52 damages to a planing machine intrusted by plaintiff to defendants,, as common carriers, to be transported from the foot of West Twenty-third street.in the city of New York to the shop of the plaintiff in East Twenty-eighth street, between First and Second avenues, in said city. The complaint, alleged that the defendants were general truckmen and forwarding agents and general carriers of goods, and also that its machine was injured by defendant’s negligence.. The answer denied that the defendants were common carriers; alleged that the injury to the "machine was caused by the interference of the. plaintiff, and put in issue the amount of the damages.
    
      J. Homer Hildreth, for appellants.
    
      Jesse Grant Roe and Wm. H. Hamilton, for respondent.
   Daly, Ch. J.

The defendants, composing the firm of -Hurlburt Bros., are general truckmen, doing business in the-■city of New. York; “truckmen and forwarding agents,” according to their own description of their occupation. Their “ specialty,” as also described by themselves, is “ heavy-machinery ” which they move and transport, undertaking what ordinary truckmen cannot do because they have the appliances, wagons and'truck's to do it; employing nineteen trucks and twenty horses; making no discrimination as to customers and not refusing to move anything upon reqiiest if .reasonably paid,

From this description of the defendants’ business they undoubtedly come within the class designated as common carriers; -as distinguished from special carriers for hire; who .are- - not engaged in the general business of transporting goods. A common carrier is one who,- by. virtue of his calling, undertakes,- on recompense, to transport personal property from one place to another for all such as may choose to employ -him. Schouler Bailments & Carriers (2d ed.), 351: The criterion is . whether he carries for particular persons only or whether he . • carries for every one. ■ If a man-holds himself out to do it for every one who asks him he is a common carrier ; “ but if he does not do it for every one, -but carries for you or me only," that is a- matter of special contract.” Ingate v. Christie, 3 C. & K. 61. To -be a common carrier one must exercise the business as a public employment; he must undertake to carry - goods for persons generally and he must hold himself out as ready to engage in the transportation of goods for hire as a ■ business, not as .a casual occupation. Story Bail. § 495: . The- • transportation must be in pursuance of some carriage vocation which the carrier exercises^ One inay he a common carrier who has no fixed termini, but leaves the course of transporta- - tion in each case to depend upon "his customer’s wishes. liver Alkali Co. v. Johnson, L. R. (7 Ex.) 267; 9 id. 338.Wagoners and teamsters whose business it is to carry for hire goods and chattels from one locality to another, common porters, drivers, draymen, truckmen and carmen, whether their •employment be carried on from town to town or from' one part of a town to another, are common carriers. Story Bail. § 496; Richards v. Westcott, 2 Bosw. 589. It is not necessary that the exclusive business of the party should be carrying ; so held where one whose principal pursuit is farming solicits goods to carry to the market town in his wagon on •certain convenient occasions. He makes himself a common carrier for those who employ him. Schouler, 355, 356. See, also, Angell Carriers, 870, 871; Chevallier v. Straham, 2 Tex. 115; Harrison v. Roy, 39 Miss. 396.

The sole business of the defendants in this case was the carrying of heavy articles of merchandise such as was intrusted . to them by the plaintiffs. They undertook, for hire, to transport the goods of such as chose to employ them from place to place (Dwight v. Brewster, 1 Pick. 50), undertaking for hire to carry the goods of all persons indifferently (Gisbourn v. Hurst, 1 Salk. 249), aúd, under the definitions, must undoubtedly be regarded as common carriers. Allen v. Sackrider, 37 N. Y. 341.

By the common law every common carrier is bound to receive whatever may be offered him for transportation on hire so far as comports with his means and the nature of his calling, and is liable to damages for unreasonable refusal. Schouler, 383 ; Allen v. Sackrider, supra. It has been .said that the test in a doubtful case is whether the carrier would be so liable; but if we apply that test to the present ■case wc meet with no difficulty. These defendants are but truckmen, or cartmen, on á large scale. A truckman would undoubtedly be liable for unreasonable refusal to transport the goods of a householder who was compelled to move, for instance, on the first of May; and in the case of the removal •of heavy machinery it is difficult to perceive why truckmen, whose business is to handle just such bulky goods, would not be liable for a like unreasonable refusal in a like emergency. 'The obligation to carry all goods offered grdws out of the general transportation business in which the earner is engaged, -and his holding himself out to the public as a general carrier, so that dealings are had with, him in reliance thereon. - It makes no difference that these defendants’ “specialty” was the moving of heavy machinery and that they would refuse to move furniture, for, as I said before, the carrier is only hound to convey so far as comports with his means and the nature of his calling.

Hof is it of "importance -that defendants--have .no regular tariff of charges for their work, but that a special price is fixed by.agreement in every case they undertake. The necessity for a different charge in each case grows out of the difference in labor in handlings articles of great bulk. The charge in each case may he proportioned to the risk assumed1-and com- ■ mensúrate-with the carriers’ obligation as insurers.

Bucli was the obligation and liability of defendants in this. ■ case when they received the planing machine to transport it from the foot of West Twenty-third street to plaintiff ’s shop in. East Twenty-eighth street, and the learned trial .judge, might well have instructed the jury that 'they were common carriers and. insurers of the goods. The defendants were not; prejudiced, therefore, by his leaving it to the jury to decide whether they were common carriers or not; and the verdict, of the jury, if based upon a finding against defendants on that: ground, cannot be disturbed.

The -main question in the caée is whether any "act of the plaintiff relieves the defendants from liability for the injury which the-machine received while handled by their men. It appears that the defendants had brought the machine to the. plaintiff’s place on September twenty-fourth, about six o’clock in the evening, and proposed to leave it- on the sidewalk all night, with one end resting..on the truck in which it had been brought and the other end in the entrance to plaintiff’s yard.. Plaintiff’s superintendent insisted upon- its being put into the ■ shop that night. Defendants proceeded to comply with this, direction, and while handling the - machine the bed oil which it rested was broken by being lowered irregularly on the two-jacks employed for that purpose. Defendants claim that; their men at the .different jacks could not see each other owing to the darkness, and that the injury was occasioned from that cause.' If this be so the damage was due to the negligence of the defendants in attempting to work in the dark without procuring lanterns to assist them. No act or direction of plaintiff prevented their procuring the necessary lights. Whatever precautions were needed they were at liberty to take and they were not restricted in any way, nor controlled by plaintiff in the manner in which the work was to be done. The insistence of plaintiff upon the machine being put in the shop, and not left upon the sidewalk all night, in no way controlled the judgment or discretion of defendants or their servants, who were at liberty to comply or not with this requirement, and who might have stipulated for immunity from damages if they had chosen, for a common carrier may limit his liability as insurer by contract in any particular case. Moriarty v. Harnden's Express, 1 Daly, 227. But the evidence tended to show that the understanding of the parties was that the work should be done in the evening after working hours, owing to the interruption of business which would be caused by the blocking up of the gangway or entrance in the moving of this bulky machine, which was over thirty feet long, four to eighteen feet wide and four feet six inches high, the whole weighing about 22,000 pounds, and in that view of the case the defendants were not required by the plaintiff to do more than the contract called for.

On the question of damages the verdict cannot be disputed. There was a dispute as to whether a new bed was required at a cost of $855, or whether it would be sufficient to repair the old bed at a cost of about $100.' The verdict was $500, and in view of the evidence that plaintiff was subjected to an expense of $435 for work done out of the shop while the machine was disabled and before repairs could be completed, the jury was manifestly indulgent to the defendants. Proof of the cost of such work was properly admitted; it was hot an attempt to show loss of profits upon contracts, but simply the direct damage sustained by the loss of the use of the machine. Hone of the exceptions in the case present error or any ground for reversing the judgment.

Judgment and order affirmed, with costs.

Bisohoff and Pryor, JJ., concur.

Judgment and order affirmed, with costs.  