
    Wibert and another against The New-York and Erie Railroad Company.
    Common carriers, where there is no express agreement to transport property within a limited time, are not responsible for delays occurring without their fault.
    Notwithstanding the provisions of the statute (chap. 140 of the Laws of 1850, § 30) requiring railroad companies to furnish sufficient accommodation for the transportation of all such property as shall be offered for transportation, and to transport and deliver the same, a company is not liable for damage occasioned by delay, where its road was in good order and well equipped, and it ran as many trains as could be done with safety, and the delay was caused by an unusual quantity of freight being delivered to it which was forwarded without preference in the order of its receipt.
    Action to recover damages for alleged negligence of the defendant in not transporting to and. delivering at the city of New-York a quantity of butter in a reasonable time. The cause was twice tried before a referee; on the first trial the plaintiffs had judgment in their favor. This judgment was reversed by the supreme court sitting in the 8th district and a new trial ordered.
    On the second trial it was proved that, during" the winter of 1853, the defendant, being a railroad corporation, was a common carrier of passengers and freight between the cities of Buffalo and New-York, in connection with another railroad company, known as the Buffalo and New-York City Railroad Company; that the road of the latter company was ninety-one miles in length, extending from Buffalo to Hornellsville, a point on the defendant’s road east of its westerly termination, where it formed a junction with the road of the defendant, and that the length of the defendant’s road from this junction to the city of New-York was three hundred and thirty miles; that on the 17th of January, 1853, the plaintiffs delivered to the Buffalo and New-York City Railroád Company, at Buffalo, and that company there received from them, about ten thousand pounds of butter, to be transported over said railroads to the city of New-York; that on the 18th of January the butter was forwarded from Buffalo in the freight cars of the Buffalo and New-York City Railroad Company, and in seven hours, which was the Visual time of transit, it was delivered to the defendant at the junction with its road at Hornellsville, and thence was transported in the same freight cars by the defendant on its road to New-York; that it arrived at the city of New-York on the 31st of January, and was delivered to the plaintiffs the next day. It was further proved that the butter could have been transported from Buffalo to New-York, on these roads, in three days if there was no detention; and that the usual time occupied, prior to and at the time the butter was delivered by the plaintiffs to the company at Buffalo, in conveying freight from Buffalo to New-York was six days; that during the month of January, 1853, there was an unusual quantity of merchandise delivered to the defendant to be transported to New-York; that the defendant’s road was in good order and well provided with cars and engines, and as many freight trains were run thereon as could be with safety; that the quantity of merchandise received for transportation by the defendant exceeded the capacity of its road to transport the same immediately, and it accumulated in the depots and on the road of the defendant ; and that this caused the delay in the conveyance and delivery of the plaintiffs’ butter, which'was forwarded and delivered as soon as other property received at the same time.
    The plaintiffs proved, subject to objection by the defendant, that the market value of the butter was four cents per pound less in the city of New-York on the first day of February, 1853, when it was delivered there, than it was on the 25th of January, when they claimed that it should have been delivered.
    Upon these facts the referee found and decided that the delay in conveying the butter to New-York was excused; and that the defendant was not liable for any damages sustained by the plaintiffs by such delay ; he further decided that the plaintiffs, if entitled to recover damages for the delay, could not recover, as such damages, the difference between the market price of the butter on the day when it should have been delivered and the market price at the time it was delivered. The counsel for the .plaintiffs excepted. On appeal the judgment ordered by the referee was affirmed by the supreme court sitting in the 8th district. The plaintiffs appealed to this court. The case was submitted on printed briefs.
    
      John C. Strong, for the appellants.
    
      John Ganson, for the respondent.
   Denio, J.

It is not material to determine whether it is established by the admissions in the pleadings or the finding of the referee, that the two railroad companies, which together formed the line of transportation between Buffalo and New-York, were partners. It is somewhat uncertain whether the plaintiffs should be understood to aver in the complaint that both companies were common carriers for the whole distance, or only that they ran in connection as a continuous line, each being carriers upon their respective roads; and the same indefiniteness of statement is found in the report of the referee and in the bill ol exceptions. In both these papers it is stated that the defendant, the New-York and Erie Railroad Company, was a common carrier between the cities of Buffalo and NewYork, in connection with the Buffalo and New-York City Railroad Company. They might run in connection and together cover the whole distance, each company being carriers over its own road only; or they might, if the law will permit such arrangements between railroad companies, be copartners as carriers over the entire road, as is sometimes the case in lines of stage coaches. (See Bostwick v. Champion, 11 Wend., 571; S. C. in error, 18 id., 175.) The question could only be material in reference to the plaintiffs’ argument, that the carriers having received the property and commenced the transit, could not afterwards allege the accumulation of freight at a point on the route as an excuse for not delivering it at the terminus without delay. If it were essential to decide that question, I should hold that the statements were insufficient to enable us to adjudge that the two railroad companies were partners; but I am of opinion that whichever may be the proper construction of the allegation in this respect, we cannot disregard the fact that two separate railroads were employed in the transportation of this property from Buffalo to New-York, and that the point where they united at Hornellsville was a depot where delay might happen in consequence of an excessive accumulation of freight at a particular season. Whether, therefore, the two railroads were copartners, or only carriers over their respective roads, the place where this freight was taken upon the New-York and Erie road, was “the place of starting,”-or “junction” of railroads, referred to in the act of the legislature to be presently mentioned. The thirty-sixth section of the general railroad act, is in the following language: “Every such corporation shall start and run their cars for the transportation of passengers anl property, at regular times to be fixed by public notice; and shall furnish sufficient accommodation for the transportation of all such passengers and property, as shall within a reasonable time previous thereto, being [be] offered for transportation at the place of starting and the junctions of other railroads, and at usual stopping places established for receiving and discharging way passengers and freight; and shall both transport and discharge such passengers and property at, from and to such places on the due payment of the freight or fare legally authorized therefor; and shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the premises.” (Laws 1850, p. 231.) The act contemplates that it may not always be in the power of a railroad company to dispatch either passengers or freight immediately upon their arrival at a station or junction, and it therefore allows the company a reasonable time after their arrival and the offer of property for transportation to set it in motion from such starting point or junction. What is a reasonably period, must depend upon the actual circumstances existing^ at the time the property is offered for transportation. In the absence of any cause for delay it should be sent immediately forward, as the owners of property destined to a market may always be presumed to desire its arrival at the earliest practicable time. The referee has found that the defendants’ road was in good order and well equipped with cars and engines; that during the month of January, (the property in question having been received on the 18th day of that month,) a larger amount of freight than usual had been received by the defendants to transport to New-York, and that the amount so received and accumulated exceeded the then capacity of the defendants to remove, though they ran as many freight trains as could be ran with safety; and that such accumulation formed an excuse for the delay which occurred in this case. We are to presume that these facts were found upon sufficient evidence. We have then, this state of facts. The defendants were without fault in respect to the state of their roads; they had provided sufficient cars and engines and sent forward as many freight trains as safety would permit, but owing to an unusual demand for transportation at that time, the plaintiffs’ property could not be sent forward faster than it was sent. If, under such circumstances, a railroad company would be liable on account of a tardy delivery, the business would be quite too hazardous to be followed by prudent men; for, whether the carrier is answerable for losses occasioned by a falling market or not, he certainly would be for the interest upon the value of all the. property, the delivery of which was delayed by his fault. But the law is not so unreasonable. A carrier may lawfully refuse to receive goods offered for transportation, because his coach is full, or because he has not the means of transporting such goods, or a carrier by water may refuse to take them until he is ready to sail. (Morse v. Slue, 1 Vent., 190, 238; Lane v. Cotton, 1 Ld. Ray, 646, 652; Story on Bailm., § 508.) The statute which has been referred to, is designed to bring these railroad lines within the general principle of common carriers, with such variations as the nature of the business requires. They are required, for instance, to have regular times for starting their trains, of which public notice is to be given, and they are to take all kinds of property which may be offered, in which particular they are held to rules which do not apply to other carriers; but then, as even their means of transportation are not wholly without limit, they are to have a reasonable time after the freight is offered, to send it forward.. If, when a particular parcel is' offered, the next train is filled up, the goods must wait for the succeeding train, or if on account of an unusual accumulation, the means of transportation for several successive trains, or for several days are anticipated, the property must remain until its time sta.11 arrive, subject to the qualification, that the company must not be in fault in providing sufficient accommodation for the general trafic of their road under ordinary circumstances. The plaintiffs’ counsel maintains that these principles are inapplicable to this case, because, as he insists, there was but a single line from Buffalo to New-York over the whole of which the defendants were carriers, and the property having been embarked at Buffalo, there could be no excusable delay afterwards. But the plaintiffs knew that then- property was started upon a branch road, and that the defendants’ main line extended west beyond the junction oi the road running from Buffalo, and that an accumulation at the junction might cause a delay as probably as at Buffalo." It is not stated in the report where the detention of these , goods took place, but as it is found that the delay was owing to the accumulation of freight, we must assume that it was either at Hornellsville or at some station where freight was received for transportation. We are not to assume that an undue preference was given to other freight over that of the plaintiffs, for it is specially found that this property was transported and delivered as soon as other property, during the period in controversy.

The law, upon well known motives of policy, has determined that a earner shall be responsible for the loss of property entrusted to him for transportation, though no actual negligence exist, unless it happen in consequence of the act of God, or the public enemy; but when the goods are actually delivered at the place of destination, and the complaint is only of a late delivery, the question is simply one of reasonable diligence, and accident or misfortune will excuse him, unless he have expressly contracted to deliver the goods within a limited time. (Parsons v Hardy, 14 Wend., 215; Harmony v. Bingham, ante, 99.) I am of opinion that the finding of the referee establishes that there was no culpable want of diligence on the part of the defendants in this case and that they are not liable to the plaintiffs for any damages.

Having come to this conclusion upon the main issue, we ought not to lay down any rule upon the subject of the damages which the plaintiffs would have been entitled tc recover if they had established a cause of action. If we should do so, it would not furnish a precedent by which those who may succeed us in this court or the community would be bound, should we even consider ourselves concluded by it. It is only upon points necessarily involved in the determination of causes, that the judgments, even of the highest appellate courts, furnish authoritative adjudications. .For these reasons we forbear to express any opinion upon the question whether carriers who undertake to transport merchantable commodities to market, are liable for damages in consequence of a decline in the market, where a delivery has been delayed through want of diligence in the carrier, although that question has been very intelligently argued upon the printed briefs, and we are, moreover, furnished with an unusually elaborate and able opinion upon that question delivered in the supreme court. The judgment should -be affirmed.

Johnson, Crippen, Dean and Marvin, Js., concurred in the foregoing opinion.

Hand, J. (Dissenting.)

It will not be denied that a common carrier is bound to receive and carry, for a suitable hire, all the goods offered to him for transportaion. (Story on Bail., § 508; Jackson v. Rogers, 2 Show., 327; Cranch v. London and N. W. R. Co., 14 C. B., 255; 2 Kent 599.) This was the rule at common law, though he was excused if his carriage were full; and he was obliged to take only such as he carried in his known and usual course of business. (Sewall v. Allen, 6 Wend., 335; Johnson v. Midland, R. Co., 4 Exch. R., 367; Story on Bailment, § 508; Parsons on Cont., 649.) Nor was he compelled to receive the goods until he was ready to set forth on the route. Common carriers were liable for all losses except those occasioned by the act of God and public enemies; but as to the time of delivery by them, it has been said, they are only responsible for the exertion of clue diligence. (Parsons v. Hardy, 14 Wend., 217; and see Hadley v. Clarke, 8 T. R., 259; Bowman v. Teall, 23 Wend., 306; Story on Bailment, § 545 a (4 Ed.) Hand v. Bayels 4 Whart., 204.) A carrier may also be a wharfinger, or warehouseman, or forwarding merchant; and if the property be received by bim in the first instance, as such, and not as carrier, his liability is measured accordingly, until he assumes the duty of carrier. But upon the delivery of the goods to one i as carrier, and acceptance thereof by him, his responsibility in that character begins; and one duty is to transport the property, at least with all reasonable diligence. And I: have found no case where a common carrier has been ' excused for detention, or a prolonged period of passage, beyond what could otherwise have been a reasonable time, when the delay was occasioned by the insufficiency of his means of transportation, after he has actually received the j goods for that purpose. And, certainly, this cannot be a legal excuse, when he has not only actually so received the goods, but conveyed them, as in this case, over a portion of the route. No one will contend that a railroad company would be justified in leaving a passenger midway on his journey because they had not sufficient cars; and the same principle applies to freight, though the absurdity of the proposition, is not so striking. As we have seen, the carrier at common law, could refuse if his carriage were full; and if he could not immediately transport it, he might take a delivery of the property as depositary or bailee of a different character, until he could carry it. But if he received it as carrier absolutely, his duty, not only to preserve but to forward, immediately attached. If from any cause additional time will be required, he should receive it conditionally, or make a special contract; and in the former case, the circumstances must be such as to justify him in imposing terms. But I know of no principle by which he can receive and keep it on hand, and delay the transportation beyond the usual, ordinary and necessary time, especially without notice of the expected delay and without consent of the bailor, express or implied. That, it seems to me, would be a violation of his contract and his duty to the public, and must necessarily produce great loss and inconvenience. Those interested in the delivery of the property at the place of its destination, have a right to make their calculations upon the ability and willingness of the carrier to transport the property in the requisite time; which, unless some day is fixed, or there is some other agreement, express or implied, or peculiar circumstances which control, should be as soon as it can be done with suitable means, and with all reasonable diligence. And if the mere delivery of the goods to the carrier, and his acceptance, impose such obligations, a detention along the route after the transit shall have commenced, certainly cannot be justified from any cause which could have been prevented by ordinary vigilance and prudence.

But some of the duties of railroads, in respect to transportation of persons and property, have been made the subject of legislative regulation. By the 36th section of the act to authorize the formation of railroads, and to regulate the same, (Laws of 1850, ch. 140, p. 231,) it is provided, that “ every such corporation shall start and run their cars for the transportation of passengers and property, at regular times, to be fixed by public notice; and shall furnish sufficient accommodations for the transportation of all such passengers and property, as shall, within a reasonable time previous thereto, be offered for transportation, at the place of starting and the junction of other railroads, and at usual stopping places established for receiving and discharging way passengers and freights for that train; and shall take, transport and discharge such passengers and property at and from and to such places,” on payment of freight &c.; and they are made liable to the party aggrieved for neglect or refusal. Here is a positive injunction that every railroad shall furnish sufficient accommodations for transporting all property that shall, within a reasonable time before they are required to transport it, be offered for that purpose. In most respects, this section is but declaratory of the common law; and I do not say that a railroad is liable if it does not meet every emergency, however great and sudden, and be ready to carry all that may be offered for freight or passage, under all possible circumstances. These corporations are of great benefit to the country, and their existence is authorized and sanctioned by law; and there is no reason why the statute should not receive a rational and not a captious construction. But if the statute be not absolutely imperative without regard to circumstances, it does require these corporations to adapt their facilities to the general wants of the community. And there is nothing in the act that relaxes the obligation of a common earner to proceed with all diligent speed after having started on the passage. In Hadley v. Clarke, (8 T. R., 259,) a vogage was interrupted by an embargo; and even then, its continuation for two years, did not absolve the carrier from his obligation to perform as soon as he reasonably could after it was taken off. In Parsons v. Hardy supra, the carrier proved that the goods were transported with all possible diligence until they were stopped by tire act of Grod; and it seems clear, too, on principle, that want of accommodations or facilities cannot be a valid excuse for detention beyond the usual time after the property is once on its way.

These principles applied to this case, do not exonerate the defendants. The Buffalo and New-York city road and the defendants ran “in connection” from Buffalo to the city of New-York. There has been some question how far one railroad corporation can be sued for the negligence of another where the transportation is continuous and entire over their respective roads. (Weed v. Sar. and Sch. R. Co., 19 Wend., 534; St. John v. Van Santvoord, 25; id., 660; S. C., 6 Hill, 158; Muschamp v. Lancaster Railway, 8 M. & W., 421; Cronch v. Lond. & N. W. R. Co., 14 C. B., 255; Parsons on Cont., 686, 7, and notes; Champion v. Bostwick, 18 Wend., 175; S. C., 11 id., 571; Fromont v. Coupland, 2 Bing., 170; Russell v. Awstwick, 1 Sim. R., 52.) In some of the cases above cited, the corporation ‘to whom the property was first delivered, was held liable for the default of other corporations over whose lines the property was or should have been carried ; and where a carrier is in the habit of receiving and forwarding goods directed to any particular place, an agreement on his part to take them there, has been, presumed : but where their operations are entirely disconnected there is no partnership. (6 Hill, 158.) But in many cases in which different railroad corporations cannot be considered by the public strictly as partners, they may, and often doT act as agents of each other. And in this case, the Buffalo and New-York City Railroad, if the defendants can not be held liable for the negligence of the former, may be considered the agents of the defendants to receive property to be transported by them to New-York; and the defendants, in fact, received the property. The referee finds the two companies ran .in connection; and if the delivery to one was not a delivery to both for all purposes, I am inclined to think, such was the mode of transacting business by both companies, that the public might, within the decisions, well consider the Buffalo and New-York City Company the agent of the defendants so far that the latter would be liable for any breach by themselves of a contract to transport property to New-York, made by the Buffalo and New-York City Company. The butter in this case, was delivered to the latter company on the l'7th of January ; it could have been carried to New-York in three days ; and the usual time of transportation was six days; but it did not arrive there until the fourteenth, and was not delivered until the fifteenth day. The defendants actually received it on the second day after it was delivered by the owners, it having been taken nearly one fourth of the whole distance in nine hours. The referee reports that, during the winter season, three-fourths of the freight carried by the' defendants goes to New-York; that during that month, January, a larger amount than usual had been received and had accumulated on the road, which was well equipped; but that the amount of freight received and accumulated was beyond the capacity of the road. These facts are relied upon as an excuse; but can the defendants, after receiving the property and after it had been carried nearly one-fourth of the distance, and without any warning to the consignor or consignee, be allowed nearly five times as long as was necessary to convey the property, and nearly triple the usual time, and make no compensation, and merely because they liad not sufficient means of conveyance ? Is this not a violation of an implied contract ? It does not appear that the accumulation of business was sudden or unexpected. The road was well equipped, but it was not shown that its capacity could not, with reasonable exertion, and ought not to have been made sufficient. But even if it could not, it is not pretended that the plaintiffs had the slightest notice that delays might. occur; on the contrary, them agent was informed by the person who appeared to have charge of the freight train and assisted to load the butter, that it would be delivered in New-York in about five days. If the referee believed this evidence, within the principle of some of the cases, he might have found there was a special contract. (Pickford v. Grand Junction R. Co., 12 M. & W., 766; Scothorn v. S. Staffordshire R. Co., 8 Exch. R., 341.) But I think it is sufficient that the defendants received the property without notice to the owner that there was any ground for apprehension that a longer period than was usual would be required for transportation. That information, at least, .they were bound to impart, that the consignor or consignee, as the case may be, might govern himself accordingly, and they were not justified in accepting the property, even in silence, much less on a misrepresentation, when they knew that the plaintiffs must he disappointed. The judgment should be reversed and a new trial ordered.

I examined the question of damages, but the view taken by the majority of my brethren disposes of this cause without reference to that .point.

Gardiner, Ch. J., was also in favor of reversing the judgment. Ruggles, J., took no part in the decision.

Judgment affirmed.  