Opinion
January 11, 1907.
Henry Bacon, for the appellant.
M.N. Kane, for the respondent.
The law makes a common carrier liable as an insurer for the safe carriage and delivery of freight, the acts of God and of public enemies excepted. The defendant is therefore liable unless the contract of shipment shields it. It contains the following clause applicable to the case, viz.:
"That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employees, or its connecting carriers, or their employees, or otherwise, the said shipper agrees to accept as full compensation for all loss or damages sustained thereby, the amount actually expended by said shipper, in the purchase of food and water for the said stock while so detained."
The plaintiff claims that while this exemption does cover negligent delay, it does not contemplate the damage which resulted in this case from such negligent delay, viz., damage from killing and injuring the cattle. He claims that it only contemplates the "loss or damages" which the consignee may sustain by realizing a lower price in the market for his cattle on their tardy arrival in good condition by reason of the market price having fallen during the delay. In a word, he claims that the exemption only relates to the case of cattle which arrive safe and sound; that it does not apply to the case of cattle killed or physically injured by the negligent delay.
This seems to be the true construction of the exemption clause. It only contemplates a case of negligent delay where the shipper can feed and water the cattle during the delay and thereby save them, and does so. It does not mean a case where it is impossible to do so during the period of negligent delay; and in this case there was no place or means to feed and water them at Port Jervis or between there and Monroe, where the negligent delay occurred. The plaintiff had to depend on the defendant for place and opportunity to feed and water. It would therefore be unreasonable to hold that the exemption was meant to apply except in a case where they are furnished by the defendant. If in that case the shipper neglect to feed and water his cattle, the defendant is not liable for any sum — the shipper's neglect would be the cause of death or physical injury to the cattle. But if he feed and water them, then the defendant is liable for the expense thereof, but for no other loss or damage, for such is the exemption.
If the contract may bear this construction that suffices for the plaintiff, for the law is that such contracts of exemption have to be construed against the carrier when they are equivocal. This case has been here before ( 107 App. Div. 210).
The learned trial judge was requested by the defendant to charge that unless the jury could find from the evidence that the injury occurred after the train arrived at Port Jervis, the plaintiff could not recover. The exception to the refusal was technically good, for there is no evidence of any delay before reaching that place. But the learned counsel for the defendant has waived this error by not mentioning it in his oral argument nor in his brief. We are therefore not called upon to consider whether it be substantial. In the same way he has waived the exceptions to the refusals to charge his requests in respect of the violation of section 663 of the Penal Code, and the charge of the plaintiff's request on that head. They may be serious, but it is not for us to seek out and enter into errors which the learned counsel for the defendant does not claim to be aggrieved by.
The judgment and order should be affirmed.
WOODWARD and RICH, JJ., concurred; HOOKER, J., concurred in result; JENKS, J., dissented upon his dissenting opinion in Galloway v. Erie R.R. Co. ( 107 App. Div. 210).
Judgment and order affirmed, with costs.