
    Robert A. Tucker, Respondent, v. The Pennsylvania Railroad Co., Appellant.
    (New York Common Pleas
    General Term,
    April, 1895.)
    An allegation in the answer in an action against a common carrier that it is “engaged in the business of forwarding and transporting goods, and that it agrees to carry goods received by it for transportation in a safe and careful manner," is merely a statement of the legal duty of a common carrier, and is not an admission of an allegation in the complaint that “ defendant agreed to provide suitable cars and conveyances for the proper and safe transportation of” the goods for whose injury the action was brought.
    Motion by respondent for a reargument.
    
      Oha/rles Gald/well, for motion.
    
      Bobmson, Bright, Biddle c& Wcurd, opposed.
   Bisohoff, J.

Upon this motion the point is made that the court overlooked, or failed to give proper significance to, what is claimed to be an admission by the answer of the allegation contained in the complaint that “ defendant * * * agreed to provide suitable cars and conveyances for the proper and safe transportation of said lemons.”

This admission in fact was “ that it (defendant) is a common carrier engaged in the business of forwarding and transporting goods, and that it agrees to carry goods, etc., received by it for transportation in a safe and careful manner.” This is merely a statement of the legal duty of a common carrier, and does not affect the fact that here nothing was shown upon which a failure of duty with regard to transportation in a safe and careful manner was predicable under the charge delivered at the trial.

According to the plaintiff’s testimony only the three varieties of cars noted in the case were used by defendant in the transportation of lemons; this he knew when tendering the goods for shipment. There is no proof that other cars, suitable and safe for transportation of such goods, were at the command of defendant, or that any other varieties were employed at that time by carriers in general for the carriage of fruit.

As we said in the opinion heretofore handed down (11 Misc. Rep. 366; 32 N. Y. Supp. 1), the jury were instructed that no duty rested upon the defendant to ship the -goods in “refrigerator” or “Eastman” cars, and it appeared that the facilities remaining to the defendant for transportation, as called for in accordance with its duties, were duly employed.

From the testimony of defendant’s receiving clerk it appears that knowledge of the fact that the goods were of a nature such as would be injuriously affected by cold was imputable to defendant, and, in view of further evidence in the case that the latter customarily used “ refrigerator ” and “ Eastman ” cars for transportation of fruit during the winter months, it would appear that the question whether, under the circumstances of the case, its duty did not require it to make use of an Eastman car, after having accepted the goods for transportation, should have been left to the jury. Wing v. R. R. Co., 1 Hilt. 243 ; Steinweg v. R. R. Co., 43 N. Y. 127; Tierney v. R. R. Co., 76 id. 314 et seq.

The fact that the goods were of the class'designated in the shipping receipt to be “ at owner’s risk ” does not affect the carrier’s liability for injury resulting from its negligence, if proven, since an exception upon this ground was not expressly provided for in terms, as would he required in order that liability so sought to be imposed might be resisted. Canfield v. R. R. Co., 93 N. Y. 537; Nicholas v. R. R. Co., 89 id. 370.

Motion denied, with ten dollars costs.

Daly, Ch. J., and Pryor, J., concur.

Motion denied, with ten dollars costs.  