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Bradley v. Lake Shore and Michigan Southern Ry. Co.

Supreme Court of New York, Appellate Division

June 2, 1911

ELVINA C. BRADLEY, as Ancillary Administratrix, etc., of HERBERT BRADLEY, Deceased, Respondent,
v.
LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, Appellant, Impleaded with LEHIGH VALLEY RAILROAD COMPANY, Defendant.

Page 313

APPEAL by the defendant, the Lake Shore and Michigan Southern Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1910, upon the verdict of a jury for $2,755.18, and also from an order entered in said clerk's office on the 16th day of November, 1910, denying the said defendant's motion for a new trial made upon the minutes.

COUNSEL

William Mann, for the appellant.

William Harison, for the respondent.

LAUGHLIN, J.:

This is an action by a shipper against a connecting common carrier for the loss of a carload of goods. It is predicated upon negligence, and the particular negligence charged against the appellant is that on receiving the car from the Lehigh Valley Railroad Company its employees discovered that the car contained a consignment of acid which was leaking, and did not, with due diligence, take proper steps to transfer the goods to a warehouse or to another car. Within three hours after the car was delivered to appellant, and before it had been moved or in any manner interfered with by appellant, the leaking acid set fire to it and the car and its contents were destroyed by fire and by explosions caused by the ignition of the fumes of the acid.

The action is on an assigned claim of the Baker & Adamson Chemical Company, a corporation engaged in the manufacture and sale of chemicals, and having its plant at Odenweldertown, a suburb of Easton, Penn. The shipper's plant was connected

Page 314

with the Central Railroad of New Jersey by a spur which it owned. For some years it had been accustomed to ship a few carloads of drugs and acids each month, and its business in this regard had been gradually increasing. When the shipper required a car it notified the railroad company, and when a car was furnished it was placed on the spur owned by the shipper and loaded by the employees of the shipper, and then a shipping order on blanks evidently furnished by the carrier was filled out by the shipper, and the shipper likewise filled out blank bills of lading attached to the shipping orders by perforated lines, and they were delivered to the agent of the common carrier and signed by him and redelivered to the shipper. In this instance the shipper, in the customary manner, called for a car in which to ship a carload of acid, and the railroad company thereupon delivered to the shipper an empty box car which the employees of the shipper loaded with ninety-two carboys of acid, five cases of acids, twenty-one barrels of acids, one case of ammonia, twenty-one barrels of ammonia, four barrels of drugs and one case of drugs, and filled out the shipping order under date of July 14, 1903, for the consignment of the carload of goods to F. W. Brown Co., San Francisco, Cal., via the Lehigh Valley, Lake Shore and Michigan Southern, Burlington and Quincy and Santa Fe and Denver railroads, and correspondingly filled out the bill of lading for signature by the agent of the initial carrier, and in due course it presumably was issued, although it was not introduced in evidence. The acids were packed partly in carboys and partly in bottles, and the bottles had glass stoppers made fast with plaster of paris and tied with a cord dipped in wax to prevent it from rotting. The carboys had glass caps held down with zinc rings and waxed to prevent the escape of fumes, and were packed in marsh hay in wooden boxes with hoods to protect the necks of the carboys. The bottles were likewise packed in barrels. There were, in part at least, two tiers of barrels and boxes. The evidence tends to show that this was the customary method employed by the shipper in packing such acids down to that time; but it appears that about six weeks prior thereto, and on the 1st day of June, 1903, the Jersey Central Railroad Company filed with the Interstate Commerce Commission

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a new classification of freight, effective from June 1, 1903, which contained a note stating that 'nitric acid carboys will not be accepted for transportation unless the carboys are packed with non-combustible dunnage.' It was not shown that actual notice of this regulation was given to the shipper prior to the shipment in question; but at the request of the counsel for the defendant the court instructed the jury that the filing of the classification with the Interstate Commerce Commission was notice to the plaintiff of the rules and regulations concerning the manner in which nitric acid should be packed and that became the law of the case. The carboys in question contained a large quantity of nitric acid and it is conceded that they were not packed in accordance with said regulation. In no event, therefore, could this recovery stand for the inference is quite plain that failure on the part of the shipper to comply with said regulation was a proximate cause of the loss. The description of the goods entered in the bill of lading by the shipper followed the description contained in the shipping order, which has already been fully stated. The carboys and bottles contained not only nitric acid but sulphuric, muriatic, acetic and hydrofluoric acids as well, and there was no specification in the shipping order or bill of lading of what the said acids were or that they were inflammable, explosive or dangerous, although an express provision printed on the shipping order and stipulated to constitute part of the contract provided that every party, whether principal or agent, 'shipping inflammable, explosive, or dangerous goods, without previous full written disclosure to the carrier of their nature, shall be liable for all loss or damage caused thereby, and such goods may be warehoused at owner's risk and expense or destroyed without compensation.' The only other information given to the carrier with respect to the nature of the goods was a card attached to the car by the shipper the wording of which was, 'Acids; --Handle carefully; not to be transferred. The Baker & Adamson Chemical Company, Easton, Pennsylvania.' The car was delivered to the appellant by the Lehigh Valley Railroad Company at Buffalo, N.Y. , about ten P. M. on the evening of the 18th day of July, 1903. No waybill or other evidence was offered with respect to the information communicated by

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the initial carrier to the succeeding carrier; or by it to the appellant. It was not even shown that the car at the time it was received by the appellant contained the card with respect to its contents, but there being evidence that such a card was attached to the car by the shipper, perhaps the inference would be permissible, in the absence of other evidence, that it remained there. The employees of the appellant on receiving the car discovered that it was leaking and the odor indicated that it contained some kind of acid. The appellant as a connecting common carrier was not chargeable with any knowledge that may have been acquired by the initial carrier and not communicated to it with respect to the contents of the shipment. No partnership or other relation between the carriers was shown which would make an intermediate or connecting carrier liable for any negligence on the part of the initial carrier who was the agent, not of the connecting carrier, but of the shipper with respect to billing and delivering the goods to a connecting carrier. ( Hinkley v. N.Y. C. & H. R. R. R. Co., 3 T. & C. 281; affd., 60 N.Y. 644; 4 Elliott Railroads [2d ed.], § § 1443a, 1444, 1445, 1447, 1448.) Appellant on receiving the car was, therefore, chargeable merely with knowledge of the fact that the car contained acids and that some of the acids were leaking. The evidence tends to show that strong nitric acid in sealed carboys would, owing to sudden changes of temperature, tend to decompose and give off fumes which might burst the carboys, and that such acid is very dangerous if brought in contact with wood or other inflammable substance and may set it on fire.

It is immaterial to the decision of the question with respect to the appellant's liability whether the leak of acid was caused by negligence of the shipper in preparing it for shipment or in loading it, or by the negligence of the initial or second carrier, or without negligence on the part of any one. There is no evidence, and it is not claimed, that the appellant was in any manner responsible for the leak. There is no evidence with respect to the extent of the damage done to the goods before the car was received and accepted by the appellant; nor is there any evidence with respect to ...


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