
    McKay v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 11,1889.)
    Cabkiebs—Op Goods—Connecting Lines—Delay—Tbanspeb.
    Defendant agreed with plaintiff to transport a quantity of potatoes over its railway to New York, and there to deliver them to a steamer for Belfast, the point of consignment. Its agent knew the importance of the arrival of the potatoes at Belfast in time for the seed market. No steamer or line of steamers was designated for their shipment, but defendant received the freight money for the entire distance, and agreed to forward them with reasonable dispatch. It was not to be liable for negligence or delay beyond its route. The potatoes were in New York nearly a month, when they were shipped on the first vessel clearing direct for Belfast, where they arrived too late for market, and badly damaged by delay. During this time vessels sailed weekly from New York to Liverpool and Glasgow, some of which touched atBelfaston returning; butveryfew vessels ever cleared for Belfast, owing to the slight traffic to that port, and in some cases goods were transferred from Liverpool to Belfast vessels. Plaintiff offered to prove a usual custom to ship. Belfast freight by Liverpool and Glasgow vessels, and that it was universally practiced by forwarders in New York with the class of goods in question. Meld, that such evidence tended to show negligence in the defendant in forwarding, and was-admissible.
    Appeal from circuit court, Erie county.
    Action by William McKay against the New York Central & Hudson River Railroad Company, to recover damages alleged to have been sustained by delay in transportation and delivery to the consignee of a quantity of potatoes,, shipped upon the defendant’s railroad, at Buffalo, N. Y. By the bill of lading of date April 5,1880, the defendant “received from William McKay, in apparent good order, articles: 296 barrels of potatoes; one barrel of flour, brand •Ionia;’ .two barrels of potatoes; two barrels of potatoes,—prepaid to Belfast* $360.43, marked William Logan, County Antrim, Ballymena, Ireland, via Belfast, care of W. H. Mclllhanney, New York, as described above, contents and value unknown; to be transported by New York Central & Hudson River Railroad Company to their warehouse at New York, ready to be delivered to, the party entitled to the same; and it is expressly stipulated and agreed that the above property is transported upon the conditions indorsed hereon, which, form part of this contract, and of the consideration for carrying the same,, and not otherwise; and that the company is not to be held liable for the loss of said property, or for any damage or injury to the same, or for any delay in, the delivery thereof, by any other carrier, cartman, or freightman, after the same has been loaded, ready, shipped, or sent from the company’s warehbuse.” The conditions indorsed upon this bill, so far as they have any relation to-this shipment, were that the company would not be responsible for damages-occasioned by delay or injury to perishable property; that it will only be liable as warehousemen after the property has been placed in their freight depot;, that property consigned to any one place of the company’s line of road, or to any point or place beyond its termini, will be sent forward with as reasonable dispatch as the general business of the corporation at its warehouse within mentioned will admit, by a carrier or freightman, when there are such known to the station agent at the warehouse willing to receive the same unconditionally, etc.; that the company will not be liable for any damage or injury to property after it shall have been sent from such warehouse, or tendered to-such carrier or freightman for such transportation. The plaintiff, as found by the court, then executed to the defendant a release from liability for damage to perishable property occasioned by delay from any cause or change of weather, or for damage-and loss while in the company’s depots. The property was without delay shipped and transported to the city of New York to. the care of Mclllhanney, the defendant’s foreign freight agent at that place, and there remained until May 4, 1880, when it was shipped on the steam-ship. Stratherly, and reached Belfast on the 21st of that month, too late for the seed market. The potatoes were then much decayed, sprouted, etc., and of but little value. The loss occasioned by their damaged condition was the consequence of the delay in transportation to the consignee. The cause was tried before the court without a jury, and judgment was rendered for the ■defendant, from which plaintiff appeals.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      Adalbert Moot, for appellant. Daniel McMillan, for respondent.
   Bradley, J., (after stating the facts.)

The undertaking of the defendant to transport the goods rested in contract, which did not in terms require it to take them beyond its own line, which, so far as appears, terminated at the city of Hew York; and, in view of the facts as found by the trial court, ■there was no implication that the defendant assumed to convey the property any further. Ho presumption that it was to do so arose from the consignment address put upon the goods before their shipment at Buffalo. Root v. Railroad Co., 45 N. Y. 524; Babcock v. Railway Co., 49 N. Y. 491; Rawson v. Holland, 59 N. Y. 611. The receipt by the defendant of payment of the requisite amount to pay the freight to the place of destination might, unexplained, have been a circumstance tending to show an understanding that it should transport the property the entire distance; but in view of the evidence, and the fact as found that, at the request of the plaintiff, the amount of the freight by steamer was ascertained, and the money taken and forwarded by the defendant to pay it for the plaintiff, was sufficient to repel any inference which might otherwise have arisen in that respect. It must be assumed that the defendant undertook to transport the goods no further than the city of Hew York. But the defendant assumed the duty of using reason■able diligence to deliver the property to the connecting carrier for transportation to the place of consignment. There is nothing in the bill of lading, in the conditions indorsed upon it, or in the release executed by the plaintiff, which relieved the defendant from liability for negligence in forwarding the property to the succeeding carrier. The provisions of the contract exempting the defendant from responsibility for delays will not be taken to include a ■delay occasioned by the negligence of its agents and servants, as no such purpose is therein expressed. Read v. Spaulding, 30 N. Y. 630; Condict v. Railway Co., 54 N. Y. 500; Lamb v.Railroad Co., 46 N. Y. 271; Mynard v. Railroad Co., 71 N. Y. 180. But, in view of the provisions of the contract in that respect, the burden was with the plaintiff to prove that the delay in transportation from Hew York was the result of negligence of the ■defendant. Whitworth v. Railway Co., 87 N. Y. 413. The potatoes were shipped, to be used for seed in Ireland, of which the defendant’s freight agent was advised. It was essential that they should reacli their destination in time to go into the market for that purpose. They failed to do so. They were also perishable property, and when they reached there were much injured by having become sprouted and considerably decayed. The property having been received by the defendant with knowledge, on the part of its agent, of its ■character, and of the purpose for which the shipment was designed, the defendant must be deemed chargeable with knowledge of the importance of transportation without unnecessary delay to the consignee. These potatoes probably reached Hew York before the 10th of April, and there is evidence to the effect that the time between there and Belfast by steamer was about 15 ■days. This property was shipped on the steam-ship Stratherly, May 4th. It was conceded that she “was the first one to clear at or leave the port of Hew York after the 20tli day of March, 1880, sailing for Belfast, Ireland, and that she left Hew York on the 4th day of May, 1880, and arrived at Belfast on the .21st day of May. ” The defendant’s counsel relies upon this fact as conclusive in support of the defense, and contends that this was the first vessel in ■the contemplation of the parties, as evidenced by the contract, that left Hew York, after the property arrived there, upon which the defendant was required to or properly could ship the goods. If the contract is entitled to such construction, there was no negligence resulting from the delay in forwarding the property, because when the undertaking of the carrier is to forward or transport goods by any certain means, that only can, without increased responsibility, be adopted. The use of any other may be treated as a deviation from, the contract, and such forwarder be charged as an insurer. Railroad Co. v. Allison, 12 Amer. & Eng. R. Cas. 28; Goodrich v. Thompson, 44 N. Y. 324.

It does not appear that when the goods were shipped at Buffalo the parties-had in view any particular steamer or line of steam-ships upon which the potatoes should be forwarded from Eew York. As represented by the bill of' lading, the contract was that they should go to the place of destination by way of Belfast; and the plaintiff testified that his direction to the defendant’s agent was that the property go by steamer to Belfast. This direction evidently was given by him with a view to expedition, and for that purpose, by way of distinguishing such means of transportation from that of a sail-vessel. The goods necessarily had to be taken there by water navigation; and the fact that they were to go to Belfast did not necessarily require that they be shipped, upon a steamer which cleared at Eew York directly for the port of Belfast,, provided that there were other steam-vessels by which, in the usual course of transportation, property was taken to that place from Eew York. There was-some evidence tending to prove that steam-ships left Eew York weekly for Liverpool and Glasgow; that those for the latter place touched Belfast on their return; that in some cases goods were transferred from Liverpool steamers to-those going to Belfast; and that, by reason of the small amount of business between Eew York and Belfast, steam-vessels did not frequently clear at the-former directly for" the latter place. And the plaintiff’s counsel offered to-prove that in April, 1880, at the time these potatoes were shipped, freight entered for Belfast was in the course of business shipped from Eew York by steamer either by Liverpool or Glasgow; that this was the way in which forwarders in Eew York shipped freight intended for Belfast, and was the most-expeditious and the only way in which freight of this character could be expeditiously forwarded to that place; that through rates were and could have been obtained from Eew York direct to Belfast by either Liverpool or Glasgow steamers; and that forwarders in Eew York city doing business of this character shipped their freight in that way universally. The defendant’s objection to this evidence was sustained, and the plaintiff excepted. This evidence was admissible. The question was whether the defendant had used due diligence in forwarding the potatoes on their way, by steamer, from Eew York; and it was clearly competent for the plaintiff to produce evidence that opportunities, which came within the usual and ordinary course of business of transportation from there to Belfast, were furnished to forward this property by steam-vessels, from time to time, before the time the defendant caused it to be forwarded. This fact, if proved, would have been entitled to consideration on the question of negligence charged against the defendant. There was no restriction, so far as appears, either of the bill of lading or direction of the plaintiff, which relieved the defendant from the duty of exercising reasonable diligence in ascertaining early recognized means, if they existed, of thus forwarding the potatoes, and in causing them to be delivered for shipment upon a steamer by means of which they would have been taken to. Belfast, whether or not it cleared directly for the latter place. For the purposes of the question arising upon the exception to the exclusion of the evidence» it must be assumed that, if permitted, the plaintiff would have-proved in a proper manner the facts stated in the offer. And for the error of rejecting the evidence so offered the judgment should be reversed, and a, new trial granted, costs to abide the event. All concur.  