Art. 6. Carriers.

the consequences of delay occasioned by its negligence, as exemption from liability for that cause was not expressed in the contract. Jennings et al. v. Grand Trunk Ry. Co., 127 N. Y. 438 (450).

In Will v. Postal Telegraph Cable Co., 3 App. Div. 22, the court, in commenting upon the authorities upon the subject, said that it is now well-settled rule of law, that the common-law liability of a carrier may be restricted by express stipulation, but that the tendency of the courts is very properly in the direction of its restriction rather than expansion, citing Nicholas v. N. Y. C., etc., R. R. Co., 89 N. Y. 370.

Generally, words in the contract of a common carrier limiting its responsibility will not be construed as exempting it from liability for negligence, when they are capable of other construction. The rule applies both to carriers of persons and goods. Kenny v. N. Y. C., etc., R. R. Co., 125 N. Y. 422.

It is the law of this State, as settled by many decisions in the Court of Appeals, that a common carrier may limit his liability by contract, and the contract may provide for immunity in the negligence of the carrier or one of the agents, but where the latter object is sought to be accomplished, the contract must be aptly expressed in unequivocal terms. Zimmer v. N. Y. C., etc., R. R. Co., 137 N. Y. 460.

In Springer v. Westcott, 166 N. Y. 117, it was held that where a baggage express company, upon receiving a railroad passenger's check, delivered a paper which contained conditions relating to the terms of the contract, the court properly charged that if the plaintiff knew the character of the paper, or accepted it with notice of its contents, or with notice that it contained the terms of a special contract, she could not recover in excess of the amount stipulated therein; but if she did not know that the paper delivered was a contract, and received it not knowing its contents, and was satisfied it was given her simply to enable her to trace her property, or as a mere receipt, she could recover the value of the goods lost.

It seems that where plaintiff receives a written contract with reference to a shipment of freight before the shipment, he will be held to its terms; but the mere retention of such a contract, without examination, after such shipment, is not sufficient to preclude him from showing what the contract really was. Waldron v. Fargo, 170 N. Y. 130.

Art. 6. Carriers.

In Mills v. Weir, 82 App. Div. 396, the authorities with regard to acceptance of receipt of an express company by shipper are collated and considered. It is held that where the shipper did not testify that he did not read the receipt, that the terms of the receipt were binding upon him, constituted the measure of the express company's obligation to him. Distinguishing Blossom v. Dodd, 43 N. Y. 264; Maddan v. Sherard, 73 N. Y. 329; Springer v. Westcott, 166 N. Y. 117, following Kirkland v. Dinsmore, 62 N. Y. 171, citing the language of Andrews, J., in that case that the acceptance by the shipper on the delivery of goods for transportation to the carrier, of the receipt or bill of lading, signed by the carrier, expressing the terms and conditions upon which they are to be received and are to be carried, constitutes in the absence of tort or imposition a contract controlling the rights of the parties.

When goods are actually delivered at the place of destination, and the complaint is only of late delivery, the question is simply one of reasonable diligence, and accident or misfortune will excuse the carrier, unless he expressly contracted to deliver within limited time. Wibert v. N. Y. & Erie R. R. Co., 12 N. Y. 245; Geismar v. Lake Shore & M. S. R. R. Co., 102 N. Y. 563.

The fact that damage was caused solely by the willful refusal of the carrier's servants to do their duty is no defense. Blackstock v. N. Y. & Erie R. R. Co., 20 N. Y. 48.

It may, however, excuse delay in the delivery of goods by accident or misfortune, inevitable, or produced by the act of God. All that can be required in an emergency is that the carrier shall exercise due care and diligence, guard against delay, and forward the goods to their destination. Geismar v. Lake Shore & Michigan Southern R. R. Co., 102 N. Y. 563, distinguishing Blackstock v. N. Y. & Erie R. R. Co., 20 N. Y. 48, citing Wibert v. N. Y. & Erie R. R. Co., 12 N. Y. 245, and holding that where a railroad company was prevented from carrying goods by mob violence, which it could not by reasonable efforts overcome, the delay in delivery was excused. Tierney v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 306, is not referred to in the briefs of counsel nor in the opinion of the court.

The carrier's undertaking to transport goods necessarily includes the duty of delivering them safely, and he has not performed his duty until he has delivered them, or offered so to do,

Art. 6. Carriers.

to the consignee. When the consignee is unknown the carrier is bound to make due effort to find and notify him. De Mott v. Laraway, 14 Wend. 225; Sherman v. Hudson River R. R. Co., 64 N. Y. 254.

If the consignee is present upon the arrival of the goods, it is his duty to take them without unreasonable delay. If he is not present but lives at or in the vicinity of the place of delivery, the carrier must notify him of the arrival of the goods and then he has a reasonable time to remove them. If he is absent or unknown and cannot be found, the carrier may place the goods in its freighthouse and if the consignee does not call for them in a reasonable time, its liability as a common carrier ceases. Fenner v. Buffalo & State Line R. R. Co., 44 N. Y. 505; Draper v. President, etc., D. & H. C. Co., 118 N. Y. 118; Scheu v. Benedict, 116 N. Y. 510.

The liability of a carrier in the absence of special contract or proven custom makes him an insurer until delivery, or what is tantamount to delivery, and continues until either the property is actually delivered at its destination, or notice is given to the consignee and the expiration of a reasonable time for its removal. McKinney v. Jewett, 90 N. Y. 267; Faulkner v. Hart, 82 N. Y. 413.

A carrier is exonerated even as against a consignee of the goods, when such consignee is the owner, by delivering to a stranger pursuant to the direction of the consignee. Bank of Commerce v. Bissell, 72 N. Y. 615.

Express companies must make personal delivery or show excuse. They are not like carriers by vessels and railroads exonerated by transporting the goods to their dock or station nearest to the consignee's residence, and notifying him of their readiness to deliver. Witbeck v. Holland, 45 N. Y. 13.

A carrier discharges his duty as such when he consigns the goods to the consignee, and on refusal to accept them, the subsequent liability is that of the warehouseman. Manhattan Rubber Shoe Co. v. Chicago & Burlington R. R. Co., 9 App. Div. 172, 41 N. Y. Supp. 83.

A warehouseman is only responsible for ordinary care and for loss or injury resulting from his own default or negligence. Ladue v. Griffith, 25 N. Y. 364.

In cases of transportation of goods over several railroads, con

Art. 6. Carriers.

stituting a continuous line, none of the roads may be said to be agents of the owner so as to make him responsible for their negligence, but each road is responsible for its own negligence only. Sherman v. Hudson River R. R. Co., 64 N. Y. 254.

SUBDIVISION 3.

Carrier of Animals.

The liability of a common carrier of animals is not in all respects the same as that of the carrier of inanimate property. Though a carrier who undertakes to transport animals is not an insurer against injuries arising from their nature and propensities, and which diligent care cannot prevent, such as fright, refusal to eat, etc., yet laying out of view cases of inevitable accident, he is liable in the absence of special agreement, unless the damage was caused by an occurrence incident to the carriage of animals in a railroad car, and which defendants could not, in the exercise of diligence and care, have prevented. Clarke v. Rochester & Syracuse R. R. Co., 14 N. Y. 570.

While common carriers are insurers of inanimate property against all loss and damage, except such as is inevitable or caused by public enemies, they are not insurers of animals against injuries arising from their nature and propensities, and which could not be prevented by foresight, vigilance, and care. Penn v. Buffalo & Erie R. R. Co., 49 N. Y. 204; Mynard v. Syracuse, B. & N. Y. R. R. Co., 71 N. Y. 180; Waldron v. Fargo, 170 N. Y. 130 (138).

SUBDIVISION 4.

Carrier of Passengers.

A carrier has no right to receive as a passenger, or to accept one who so demeans himself as to injure the safety or interfere with the reasonable convenience and comfort of other passengers; and this police power the person in charge is bound to exercise with all the means at his command, when occasion requires. Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N. Y. 108, cited and followed in Freedon v. N. Y. C. & H. R. R. R. Co., 24 App. Div. 306, 48 N. Y. Supp. 584, holding that a carrier has a right to refuse to allow a person, not in possession of a ticket, who is so far intoxicated as to be helpless and almost unconscious, to enter its passenger car.

Art. 6. Carriers.

A carrier of passengers is not required to accept all persons who offer themselves for transportation and tender fare; he may lawfully decline to receive or carry those who refuse to conform to reasonable rules, after knowledge of the same, or may after such refusal eject those who have been received. Pease v. Delaware, Lackawanna, etc., R. R. Co., 101 N. Y. 367, followed in Montgomery v. Buffalo Ry. Co., 165 N. Y. 139; the latter case citing also Hibbard v. N. Y. & Erie R. R. Co., 15 N. Y. 455; Barker v. Central Park, etc., R. R. Co., 151 N. Y. 237.

A regulation that passengers exhibit their tickets whenever requested by the conductor, is a reasonable and proper one. Hibbard v. N. Y. & Erie R. R. Co., 15 N. Y. 455.

It is a reasonable regulation for a railroad company to make that a car shall be set apart for women traveling alone or with male relatives or friends, and it has a right to enforce such a rule. Peck v. N. Y. C. & H. R. R. R. Co., 70 N. Y. 587.

The responsibility and duty of the carrier continues until the passenger reaches his destination. Dwinelle v. N. Y. C., etc.,

R. R. Co., 120 N. Y. 117.

In Elmore v. Sands, 54 N. Y. 512, it was held that a limitation on a railroad ticket that it "shall be good this day only," is reasonable and valid.

In Hill v. Syr., Bing. & N. Y. R. R. Co., 63 N. Y. 101, it was held that this regulation was not waived by the indorsement of a conductor upon the ticket.

In Thorpe v. N. Y. C., etc., Co., 76 N. Y. 402, it was held that where seats in the ordinary cars were occupied either by passengers or their luggage, and a number of passengers were standing, and it appeared that the seats occupied by baggage would not have been sufficient for the standing passengers, it was not the duty of a passenger to ask the train conductor for a seat before passing into the drawing-room car; and that he was not a wrongdoer in passing into the drawing-room car and taking a seat until seats in the other cars should be vacated. That it was the duty of the defendant to furnish him a seat.

For unlawful expulsion of a passenger, if it was committed by a conductor within the instructions of the company, but unjustifiable as to the manner, the carrier is liable for any circumstances of aggravation, excessive violence, etc., which attended it. Sanford v. Eighth Ave. R. R. Co., 23 N. Y. 343.