
    De Witt C. Becker and Willis A. Trescott, Respondents, v. Pennsylvania Railroad Company, Appellant.
    Fourth Department,
    November, 1905.
    Carrier of goods liable for negligence only when consignee fails to . remove goods — evidence insufficient to establish negligence of carrier in storing goods — contributory negligence of consignee.
    The liability of a common carrier, as an insurer,-ceases on failure of the consignee to remove the goods within a reasonable time after notice of their arrival. Thereafter the carrier,is only responsible as a warehouseman, and to create such -liability, negligence must be shown. .
    When the terms of a'shipping contract provide that property not removed by the consignee within twenty-four hours after arrival “may be kept in the car. * * * of the carrier at sole risk of the owner,” it is not negligence for the car-, rier to keep dried apples in such cars, when the consignee fails to remove them after notice, and does not give any instruction as to the manner of storage.
    In the absence of evidence showing a custom, a carrier is not négligent in failing to place such goods in cold storage to prevent their spoiling.
    A consignee, who, with knowledge of the perishable nature of the goods, the weather conditions, and the right of the carrier under the contract to keep the goods in cars after arrival, is guilty of contributory negligence if he allow such goods to remain in the cars after notice of their arrival without giving instructions as to proper storage.
    Mere proof that goods were found to be damaged some days after arrival, fails to show whether they were damaged in transit or by storage after arrival, and does not warrant a recovery for negligent storage.
    Appeal by the defendant, the Pennsylvania 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 Monroe on the 20th day of February, 1905, upon the report of a referee.
    The action was commenced on the 3d day of July, 1903, to recover damages which the plaintiffs claim to have sustained because of the alleged neglect of the defendant to properly “ care for, store and protect ” three carloads of evaporated apples belonging to them, which were delivered to the Chesapeake and Ohio Railway Company for shipment to Jersey City, and from it received by the defendant, its being a connecting railroad.
    
      Frank Rumsey, for the appellant.
    
      Merton E. Lewis, for the respondents.
   McLennan, P. J.:

The plaintiffs, who were copartners, delivered three carloads of evaporated apples, containing about 500 boxes each, to the Chesapeake and Ohio Railway Company at Staunton, Va., for shipment to Jersey City over its railroad and connecting lines, one of which was the railroad of the defendant which extended to said city. One of the cars left Staunton on September 30, another October 1, and the third October 8, 1901. On what dates they were received by the defendant or at what point on its railroad dóés not appear. The cars containing the apples arrived, however, at defendant’s pier in Jersey City, the terminal of its railroad, where its yard and tracks are located, as follows; The first car, which left Staunton on September 30, arrived October 3 ; the second, shipped October 1, on October 8 ; and' the third car, which left Staunton October 8, reached defendant’s 'pier October 12,' 1901, the first and third cars having heen in. transit four days and the second seven days. Notice of the arrival of each car Was immediately given by the; defendant to the plaintiffs by mail at Fairport, N. Y., their place df residence, Which notices they received in due course. They, however,, did not claim, or seek to take possession of the property until some time in the month of Jan- - uary following, when they removed it from defendant’s pier. On the 16th or 17tli of October, 1901, one Jacobson, a witness called by .the plaintiffs, for them or by'their authority examined the apples in the car which arrived October third, the one that left Staunton first, and found that the- apples were then damaged," were slightly fermented, had commenced to turn in color and were heated. Three or four days afterwards lie examined the carload which arrived October eighth, and three or four weeks later examined, the apples in the last-car,, and which reached its destination October 12,1901. The witness testified: “ The second car I found the same as the first, all three Of them the same way. * * * My examination of the third car showed the condition to be. about the same as the Other two cars,, slightly fermented and, off color.” The witness testified in substance that when he made such examinations he knew that the damaged condition of the fruit was due to the fact that it had been allowed to remain in a closed car during hot weather. Presumably Jacobson reported the result of his examination to the plaintiffs, for whom or by whose authority he was acting. Yet they made no effort to better the com dition in which the- apples were found to be, made no complaint, gave no indication that, they Were not entirely satisfied, with the manner in which their property was being cared for. The apples remained in the cars,' those in one ear for ten days; in another for thirteen days, and in'.the third fifty^seven days after their arrival, when they were unloaded onto the pier, each carload forming a separate or distinct pile, and they so remained until some time in • January, 1902, when they were received by the plaintiffs arid caused tobe removed. There is'no evidence tending to show that the apples were not in practically the same condition in January when they were received by the plaintiffs as they were when, they were examined by the witness Jacobson, except about 100 eases,which were injured by salt water, to which reference will be made. In fact, the samples of the apples taken by Jacobson when making such examinations were the basis of the testimony given by plaintiffs’ witnesses as to the value of the apples in their damaged condition. In fact, we do not understand that it is claimed by the respondents that the damaged condition of the apples resulted from anything which occurred or from any conditions which existed subsequent to their removal from the cars, except as to the 100 cases before mentioned. The evidence also fails to show either that the condition in which Jacobson found the apples was due to the fact that the apples were permitted to remain in the cars a few days after their arrival in Jersey City, or that such damage did not result while the apples were in transit, two of the cars being upon the road four days and one seven days, it appearing that during such period the temperature was practically the same as it was after their arrival in Jersey City. It will be remembered that the apples in each car at the time they were examined, although there were several weeks intervening between the examination of the first and the last car, were all found to be in practically the same condition -r- one carload no worse nor no better than'another. It would, therefore, seem to be the merest speculation to say that the condition complained of resulted because the apples were permitted to remain in the cars after arrival in Jersey City and before they were unloaded upon the pier, rather than during the period the defendant sustained the relation of common carrier.

The defendant was not liable as common carrier to the plaintiffs in this case for the damages sustained by them. In fact, it is practically conceded by the respondents that, such liability does not exist. As stated by the referee in an opinion: “ They (the plaintiffs) concede that the transportation was properly made from Staunton to Jersey City, and that liability of the defendant as a common carrier ceased upon its notifying the plaintiffs of the arrival of the shipments at destination. They seek to recover herein solely on the liability of the defendant as a warehouseman.” It is well settled, as stated by the learned referee, that after the lapse of a reasonable time for the consignee to remove the goods after he is given notice of their arrival at their destination, the liability of the common carrier as such ceases, and if it is responsible thereafter it is as a warehouseman. (Tarbell v. Royal Exchange Shipping Co, 110 N. Y. 170.)

In'that .ease the court (p.180) said ": “ But a delivery -whibh will-discharge the carrier may be constructive' and not actual. To constitute a constructive delivery the carrier must, if practicable, give notice to the consignee of the arrival, and when this has been done and the goods are discharged in the usual- and proper place, an'd reasonable opportunity afforded to the consignee to remove them, the liability of the carrier, as such, terminates. The duty of the consignee"'to receive and take the goods is- as imperative as the duty of the carrier to deliver. Both, obligations are to be reasonably construed,, having reference to the circumstances. The stringent liability of the carrier cannot be continued at the option or to suit the convenience of the consignee. •. The consignee is bound to act promptly in taking the" goods, and if he fails to do so, whatever other duty may rest upon the carrier iii respect to the goods, his liability as insurer is by such , failure terminated. (Redmond v. Liverpool Co., 46 N. Y. 578; Hedges v. Hudson R. R. R. Co., 49 id. 223.)”

The common carrier, however, does not necessarily relieve himself from all liability by giving timely notice to- the consignee of the arrival of the goods, even although he fails to remove them within a reasonable time. “ If the consignee neglect to accept or to receive the goods, the carrier is not thereby justified in abandoning them,. or in negligently exposing them to injury. If.they are not accepted and received when^ notice -is given of their arrival, he may relieve himself from responsibility by placing the. goods in a warehouse for and oh account of the consignee, but so long as he has the custody, a duty devolves upon him to take cafe of the property and. preserve it from injury.” (Scheu v. Benedict, 116 N, Y. 513, and cases cited.)

If the goods had been stolen while in defendant’s custody because of its negligence, clearly it Would have been liable. (Tarbell v. Royal Exchange Shipping Co., supra.)

If the property had been destroyed by fire through defendant’s negligence, notwithstanding it owed no duty in respect to them as common carrier, it would likewise have been liable. (Draper v. President, etc., D. & H. C. Co. 118 N. Y. 118.)

Under all the authorities, if, after the defendant had fully discharged its duty as common carrier, it negligently suffered plaintiffs’ goods to be damaged or injured, it would be liable. So that the question arises, does the evidence tend to establish negligence on the part of the defendant ? What did it do or omit in the premises that would not have been done or omitted by a person of ordinary care and prudence ? Was it negligent because it failed to unload the apples from the cars onto the pier within ten, thirteen or fifty-seven days after it had notified .the plaintiffs of their arrival? There is no evidence tending to show that it was the custom of the defendant or of any other railroad company to so unload such goods under like circumstances. It had a right to expect from day to day that the plaintiffs would remove the same or give instructions respecting them.' A provision of the bill of lading, which constituted the contract of shipment between the parties, provided: “ Property not removed by the person or party entitled to receive it within twenty-four hours after its arrival at destination, may be kept in the car, vessel, depot or place of delivery of the carrier at the sole risk of the owner of said property, or may be, at the option of the carrier, removed and otherwise stored at the owner’s risk and cost and there held subject to lien for all freight and other charges.-” With such provision in the contract of shipment, we think the defendant was not negligent in omitting to unload the cars in question. Again, there is no evidence which shows or tends to show that the defendant knew or in the exercise of reasonable diligence ought to have known that the apples would have been in better condition if taken from the cars and placed in piles upon the pier. The fact that the goods were evaporated apples and were semi-perishable in no manner tended to establish the fact. But again, the plaintiffs knew that by the terms of their shipping contract the property “ may be kept in the car ” at their sole risk after being notified of its arrival, and, therefore, it must be presumed they knew the apples would be so “ kept in the car ” unless the defendant was otherwise instructed.. Ho instructions having been given, was the defendant negligent because* it failed to store the goods in a manner different than provided ?

"W"e conclude that the case is utterly barren of facts which indicate actionable negligence on the part of the defendant. We are also of the opinion that the plaintiffs were guilty of such negligence in the premises as would bar a recovery upon the major part of the claim. They knew the character of the goods shipped, the weather conditions and all the circumstances,- including the provisions of the bill of lading. They were promptly informed of the arrival of the goods at their destination, and yet made ho effort to protect them ■and did not suggest there was danger of injury in case they were kept in the cars, as the shipping contract provided might be done, and made no complaint as to the manner in which the defendant was caring for the goods, although being fully informed in that regard.- Under such circumstances we think it clear that the negligence of the plaintiffs, their inattention arid failure to observe the plain provision of the bill of lading, was quite as potential in bringing about the loss as any acts or omissions of the defendant. The duty of the consignee to receive and take the goods is as imperative as the duty of the carrier to deliver.” (Tarbell v. Royal Exchange Shipping Co., supra.) There is no force in the suggestion that the defendant in the exercise of ordinary care and prudence should have placed the fruit in cold storage to await the pleasure or convenience of the plaintiffs. It had the option to do so and thus might have relieved itself of all responsibility in the premises. Uo custom or course of business is shown which would impose such obligation on a common carrier. If a trainload of peaches or grapes is delivered to a common carrier for shipment to a consignee in one of our cities or villages and he is promptly informed of the arrival of such consignment and he neglects or refuses to receive the same, the carrier is not under the obligation to place the same in cold storage, but may, especially where the contract, as in this case, provides the goods may be kept in the cars, so permit them to remain until called for by the consignee without incurring any liability therefor.

Upon the main controversy in the case we think the evidence fails to establish a cause of action in plaintiffs’ favor: First, because the proof does not indicate with any degree of accuracy that the defective condition of the apples did not occur while the defendant sustained the relation of common carrier to the plaintiffs and -without any fault on its part as such; second, because the evidence fails to show negligence on the part of the defendant as warehouseman; and, third, because the evidence clearly shows that the injury sustained by the plaintiffs was the result of.their own negligence and inattention, and the failure on their part' to observe the plain provision of the bill of lading, the shipping contract.

There is a question of fact presented by the evidence as to the damage done to 100 cases of the apples while on defendant’s pier, and which were flooded by salt water. It is claimed that such damage resulted from ah unprecedented rise of tide and such as the defendant could not have reasonably anticipated. Upon the whole evidence we think the question of defendant’s negligence in that regard was one of fact.

It is considered unnecessary to discuss the other questions presented by this appeal. We conclude that the "judgment should be reversed and a new trial granted, with costs to appellant to abide event, upon questions of law only.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the facts having been examined and no error found therein. 
      
      
        Redmond v, Liverpool, IF T. & Phila. S.. Co.— [Rep.
     