
    Thaddeus Olds and Edgar E. Clark, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Limitations upon a carrier’s liability contained in a bill of lading not presented to the shipper until after the freight is beyond recall—duty of a railroad company in the care of lire stock.
    
    Where, after freight has been shipped over a railroad and is beyond recall, the railroad company delivers, to the shipper a.bill of lading, the contents of which are-not known to the shipper, provisions contained in such bill of lading linn iting the railroad company’s common-law liability in respect to the freight are not binding on the shipper, although it is signed by the shipper.
    A railroad company which receives, live stock fqr shipment is bound, to carefully ' care for the same itself, or to afford reasonable opportunity for the shipper to do so.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company,.from a judgment .of the Supreme Court, in, favor of the plaintiffs, entered in the- office of the clerk of the county of Jefferson on the 13th day of January, 1905, upon the verdict of a jury, for $1,105, and also from an order entered in said clerk’s office on the 12th day of January, 1905,. denying the defend-, ant’s motion for a new trial made upon the minutes.
    The action was commenced on the 28th day df. May, 1904, to recover damages sustained by the plaintiffs, alleged tó have been -caused on account of the failure of the defendant to properly discharge its duty as a common carrier in the transportation- of a carload of horses from the city of Buffalo to Adams, N. Y.
    
      
      Henry Purcell, for the appellant.
    
      V. K. Kellogg, for the respondents.
   McLennan, P. J.:

In the complaint it was alleged in substance that the defendant undertook to carry over its railroad from the city of Buffalo to Adams, N. Y., a carload of horses for the plaintiffs; that it failed to discharge its duty as common carrier in that regard, and that in consequence the horses were injured and the plaintiffs sustained damage. The defendant alleged, and it is not disputed, that the plaintiffs signed a “ Live Stock Contract,” so called, which by its terms relieved the defendant of its common-law liability in many important particulars, and relieved it from liability on account of any of the alleged wrongful acts or omissions which the evidence tends to establish in respect to the shipment of the horses in question.. It appears, however, that such contract was signed by the plaintiffs after the horses had been loaded in one of defendant’s cars and had left the city of Buffalo for their destination. And there is also evidence tending to show that the plaintiffs did not know the contents or purport of such agreement. If such was the fact-—• and the jury would have been justified in so finding — then the contract. had no binding force or effect, and the responsibility imposed upon a common carrier by the common law was cast upon the defendant. (Park v. Preston, 108 N. Y. 434.)

Where the goods or property have been shipped and are beyond recall before the bill of lading .or agreement limiting the carrier’s liability is executed, it does not affect the rights of' the parties. (Guillaume v. General Transportation Co., 100 N. Y. 491; Germania Fire Ins. Co. v. Memphis & Charlestown R. R. Co., 72 id. 90 ; Waldron v. Fargo, 170 id. 130, 137, and cases cited.)

In the case at bar the learned trial court held as matter of law that the live stock contract was valid and binding, and fixed the contractual relations between the parties. Clearly under the authorities cited such holding was erroneous. It is urged, however, that the appellant ought not to be heard to complain, because such ruling was favorable to it. Clearly that would be so if the learned trial court had stopped there; but instead,, at the. close of- plaintiffs’ evidence, after having ruled that no liability had been established as for a violation of the contract and that the defendant was relieved of its common-law liability because of such contract, it was suggested by the court that the complaint might be regarded as amended so as to allege a cause of action in tort, in effect a cause of action in conversion, upon the theory, as stated by the learned trial court, that the plaintiffs had a right to demand their property while in transitu, and that" as there was evidence tending to show that they did demand the horses from the defendant' while the car was in Syracuse^ for the purpose of feeding and caring for the same, and that the defendant refused to deliver them, the jury, if they believed that evidence, might find that the defendant was guilty of a tort, and if they found as'a result that the horses were injured by the inattention and negligence of the defendant after such demand and refusal, the plaintiffs would be entitled to recover. The case was submitted to the jury, if we properly interpret the meaning of the proceedings, upon that theory. To the ruling permitting the complaint to be so amended defendant’s counsel duly excepted.

Considering all the circumstances, we think such ruling constituted reversible error. But independent of that question, the evidence did not establish a cause of action against the defendant in tort or for conversion. It simply, if true, tended to prove that the defendant failed to discharge the duty imposed upon it by the common Jaw as a, common carrier. The jury, however, were instructed that they could not find the defendant liable because of its failure to perform such duty, but only if they found that it wrongfully failed to deliver possession of the horses to the plaintiffs after demand duly made.

We know of no rule which makes it incumbent upon a railroad company to deliver goods or live stock, while in transitu, to a shipper, consigned to himself, certainly not unless the freight is paid. If, however, 'a railroad company receives live stock for shipment, it is bound to properly care for the same itself, or afford reasonable opportunity for the. shipper to do so. If the evidence on the part of the plaintiffs is to be believed, they sustained damages because the defendant failed to transport their horses from Buffalo to Adams and care for them in a reasonably proper manner. That was the theory of the plaintiffs’ complaint; that was the theory upon which all the proof on behalf of the plaintiffs was introduced; but no such question was submitted to or passed upon by the jury.

Many other exceptions have been called to our attention, but as a new trial must be had, it would seem to be unnecessary to call particular attention to any of them. In short, we think the case was submitted to the jury upon an erroneous theory. They should have been permitted to say whether the Live Stock Contract,” so called, was executed after the horses had been shipped, and under the circumstances claimed by the plaintiffs, and if so, then instructed that it did not change or affect the common-law liability of the defendant. The jury should then have been permitted to say upon the whole evidence, whether or not the conduct of the defendent in the transportation of and caring for the horses was such as to absolve it from liability under the common-law rule, and if not, then such damages should be awarded to the plaintiffs as would compensate them for the actual damages sustained.

It follows that the judgment and order appealed from should be reversed upon questions of law only, and a new trial granted, with costs to the appellant to abide event.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law, only, the facts having been examined and no error found therein.  