
    George F. Fish, Respondent, v. Erie Railroad Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1916.)
    Carriers — of merchandise — delay in transportation when excused — action for damages — evidence — hills of lading.
    While an unusually severe snow-storm in February is not necessarily to be deemed, an act of God within the meaning of a bill of lading exonerating a carrier from liability for loss, damage or delay caused by the act of God, the carrier may be excused for delay in the transportation of a shipment of celery where it did all that could be reasonably expected to keep its tracks clear notwithstanding which effort the celery was frozen in transit.
    Where in an action against the carrier for damages to the celery the trial justice, after ruling that a witness for plaintiff had not been shown to be qualified to testify as to the construction of refrigerator cars, allowed the witness, over defendant’s objection, to testify that a properly constructed car would preserve celery during said snow storm in good condition for five days, it constituted such error that a judgment entered on a verdict in favor of plaintiff will be reversed and a new trial ordered.
    In view of the prompt arrival of the car at destination and of the delay in taking away its contents after it was opened, it was a fair question for the jury as to whether the damage as testified to by plaintiff had occurred during the transit of the celery or not, and a ruling of the court that defendant was concluded by its admission in its special defense that the celery was frozen in transit and the submission to the jury on that theory was error, for such admission in view of defendant’s denial of all material allegations of the complaint could at most be considered by the jury with all the other evidence in determining the issues in the action.
    Appeal by defendant from judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered on verdict in favor of plaintiff, and from order denying motion for a new trial.
    Stetson, Jennings & Russell (Allen S. Hubbard, of counsel), for appellant.
    Neil P. Cullom, for respondent.
   Guy, J.

Plaintiff has recovered a judgment against defendant carrier of goods for damages to two shipments of celery, and defendant appeals.

The celery was shipped in two refrigerator cars in February, 1914, and plaintiff claimed that the first' shipment, in car -62041, -was delivered to defendant at Elmira, N. Y., on February fourteenth. The second shipment, in car 62106, was made at the same place February 20, 1914. Car 62041, the first shipment, arrived at Jersey City February eighteenth, four days after its alleged delivery to the defendant; the other shipment reached Jersey City on the day following its delivery to the carrier.

The plaintiff testified that he examined the celery on its arrival at his store in New York city; that one-third of it was frozen, a total loss, and that the claim made in the action was merely for one-sixth of the damage. The jury rendered a verdict for the full amount demanded.

After denying the material allegations of the complaint the defendant set np as a special defense the provision of the uniform bill of lading discharging it from liability in case of loss, damage or delays caused by the act of Grod; that the celery was duly transported to its destination; that it arrived in a damaged condition ; that such damaged condition was caused by the celery having become frozen in transit due to the low temperature then existing and to a def ect or vice in the property itself, and said damaged condition was in no way caused or contributed to by any negligence on the part of the defendant.

It was conceded that on or before February 13, 1914, car 62041, then standing on a railroad siding used by the Hygeia Refrigerator Company at Elmira, N. Y., was placed at the loading platform of that company; that on February fourteenth the Hygeia Company inspected the car, lined the inside thereof with paper, filled its tanks with ice, examined and adjusted the ventilators, drips and drains, loaded the car with 168 crates of celery in good order, and sealed the doors on both sides of the car. Thereafter the Hygeia Company filled in and signed a bill of lading and a shipping order and mailed them to the defendant, and a clerk of the defendant at Elmira signed the bill of lading, returned it to the consignor, and placed his initial on the shipping order and retained it. At eight forty p. m. on February sixteenth, car 62041 left Elmira for New York.

It was testified in behalf of defendant by its employee Thompson that it began to snow at Elmira on February thirteenth, and that it snowed hard all day long on the following day; that the siding on which car 62041 was standing was below the level of the main track at that place, and the car was twenty-eight car lengths from the main track; that the track was near the river and the snow drifted so that it varied from about one foot to more than four feet in depth; that the witness had lived at Elmira over fifty years and did not remember a worse snow-storm; that on Monday morning, February sixteenth, after the main track was cleared the witness got fifteen laborers who shoveled snow in the switch from seven in the morning till four in the afternoon before he could get the switch clear of the snow; that the main track, the interlocks, had to be opened first; that the defendant had over one hundred men working all over the place clearing off the snow; that the sections were doubled from eight to sixteen men; that he tried to but could not hire any more men to clear away the snow.

It appears from a copy of the record of the U. S. Weather Bureau that there was a snowfall of twenty-four inches at Elmira on February fourteenth, and that the minimum temperature there on that day was two degrees Fahrenheit, seven degrees on the fifteenth and four degrees below zero on the sixteenth. The minimum temperature at New York February eighteenth was twenty-two degrees and on the nineteenth twenty-six degrees Fahrenheit.

When this car 62041 arrived at New York February eighteenth at five p. m., defendant’s witness testified that the seals on the doors were intact, the plugs in the ice tanks at either end of the car, for the purpose of maintaining proper circulation, were in position and the hatches to keep the cold air from entering were closed. Plaintiff took fifty crates of the celery froip this car the same day it arrived, and the balance of the shipment the following day. Under normal conditions in February, 1914, a car which was delivered to defendant at Elmira for transportation to New York city would leave the morning after it was received there and arrived in Jersey City about twenty-four hours later; and it took about a day to get a car from Jersey City to New York after it was ordered.

Defendant’s counsel asked the trial court to charge the jury that If you believe the testimony of defendant’s witnesses, Thompson, as to the snow-storm you will find that the snow-storm was an act of Grod. ’ ’ The court properly denied the request, for while the snowstorm was undoubtedly an act of Grod, it was not necessarily, an act of Grod within the meaning of the contract exonerating the defendant from liability. Nevertheless, if the jury believed Thompson’s testimony they would have been authorized to find that the defendant did all that could be reasonably expected of it under the circumstances to move the property towards it destination and, in connection with the other evidence introduced by defendant, to determine that because of "the inevitable delay under existing climatic conditions the celery was frozen in transit despite the reasonable care exercised by the defendant. See Cormack v. N. Y., N. H. & H. R. R. Co., 196 N. Y. 442; Wing v. New York & Erie R. R. Co., 1 Hilt. 235. The court charged the jury however: If you should find this was an unusual snow-storm, such as did block the work and progress on that railroad, was it that act, was it the act itself, or the snow-storm itself which caused the damages, or was it something inherently defective in the equipment of the company’s car; would these goods have been frozen if the equipment of the car had been correct, although the snow-storm was unusually severe and blocked the car in its progress.” But the only witness produced by the plaintiff to prove the defective construction of defendant’s cars was not shown to have been qualified to testify as to the construction of such cars or of any other refrigerator cars, for it appears from his testimony that he did not know of what they were constructed. Indeed the trial justice had ruled that the witness was not qualified, but subsequently against the objection and exception of the defendant allowed the following question: “ Give your opinion whether or not during this snow-storm a car properly constructed would preserve celery in good condition for five days? ” to which the witness answered “ I think it would.” This was prejudicial error. Weibert v. Hanan, 202 N. Y. 328; Dougherty v. Milliken, 1636 id. 527.

In respect to car 62106, which did not leave Elmira until February twentieth, it was conceded that the day before it left Elmira the Hygeia Company loaded the car at its siding, inspected it, lined the inside with paper, and took the same steps generally as in the case of car 62041 on February fourteenth. Car 62106 arrived at Jersey City in about sixteen and one-half hours from Elmira, and, as defendant’s witness testified, in good condition.

February twenty-second, the day after the arrival of this car, was Sunday; the defendant’s office was not open for business on that day, and on the following day the plaintiff was notified of the arrival of the car. Plaintiff ordered it on the Jersey City working track at ten twenty-five o’clock Monday morning, and 'it was so moved by the defendant in the regular course of business that afternoon. On the next day, February .twenty-fourth, plaintiff took delivery of’ sixty crates from this car, which stood in the Jersey City yards all day. On the twenty-fifth the plaintiff took no celery; on the twenty-sixth he took fifty-six crates, and on the twenty-seventh the balance of the shipment. According to the United States Weather Bureau report the temperature at New York on February twenty-fourth varied from sixteen degrees to one degree Fahrenheit, on the following day from twenty-four degrees to one degree; on the twenty-sixth the minimum was thirteen degrees, and on the twenty-seventh twenty-seven degrees.

In view of the prompt arrival of this car at Jersey City and of the delay in taking away its contents after it was opened there would appear to have been a fair question for the jury as to whether the damage testified to by the plaintiff had occurred during the transit of the celery or not. Baer v. N. Y. C. & H. R. R. Co., 83 Misc. Rep. 88; Becker v. Pennsylvania R. R. Co., 109 App. Div. 230. The learned trial court, however, held that the defendant was concluded by its admission in the special defense that the celery was frozen in transit, and submitted the case to the jury, on that theory. This was error, for in the light of the. defendant’s denial the admission could at most be considered by the jury with all the other evidence on the trial in deciding and determining the issues in the action. Talbot v. Luabheim, 188 N. Y. 421; Kraus v. Birnbaum, 200 id. 130.

The judgment and order should be reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

Page and Philbin, JJ., concur.

Judgment and order reversed and new trial ordered, with thirty dollars costs to appellant to abide event.  