LESLIE G. LOOMIS and LESLIE G. LOOMIS, JR., Plaintiffs,
LEHIGH VALLEY RAILROAD COMPANY, Defendant.
MOTION by the defendant, the Lehigh Valley Railroad Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the Ontario Trial Term in February, 1911.
The action was commenced in August, 1909, to recover the value of certain lumber furnished by the plaintiffs to construct certain doors or bulkheads in cars which were furnished to the plaintiffs for the shipment of grain, and which doors or bulkheads it is alleged were necessary in order to enable the plaintiffs to make the shipment of grain in the cars furnished to them by the defendant. No question is raised upon this
motion as to the value of the lumber or of the services rendered by the plaintiffs in the premises. In other words, it is not urged that if the plaintiffs are entitled to recover the verdict directed by the court is excessive.
Lyman M. Bass and Howard S. Jones, for the motion.
Edward P. White and John Colmey, opposed.
MCLENNAN, P. J.:
The material facts are not in dispute. The plaintiffs were shippers of grain over the defendant railroad. Seasonably, as it appears, they asked the defendant to furnish to them cars at certain points upon its railroad which would enable the plaintiffs to ship such grain. The defendant assumed to comply with such request and furnished cars for the purpose of shipping the grain which the plaintiffs had caused to be assembled at certain stations upon defendant railroad. When such grain was taken by the plaintiffs to such stations they discovered that the cars furnished by the defendant for the transportation of such grain would not in any sense accommodate the shipper because there were no grain doors or bulkheads in the center and that, therefore, if grain was put into such cars without grain doors or bulkheads hardly half a load could be carried with safety; that if a full load was attempted to be loaded a considerable part of it would fall out and be wasted. That being the situation, the defendant having practically agreed that on a certain day, at a particular station on the line of its road, it would have a car or cars for the accommodation of the plaintiffs' shipment of grain, the plaintiffs relying upon such promise, came to the stations or cars with the grain to be shipped and which would fill such cars. When such grain arrived it was discovered that there was no provision made for building or making grain doors or bulkheads, and no material provided for that purpose.
So that the plaintiffs, concededly, were under the necessity of deciding whether they would use the cars furnished to them for the purpose of taking their grain to its destination, which concededly as delivered to a station were wholly unfit for such purpose, or whether they would seek to remedy a trivial defect
in each of such cars, to wit, by building grain doors or bulkheads, and thus make the cars furnished by the defendant suitable for the purpose for which they were furnished. The plaintiffs in this case furnished at their own cost and expense only the lumber which was necessary in order to make the cars furnished by the defendant suitable for the purposes for which they were furnished.
Under the rule at common law we think it must be conceded that the plaintiffs acted strictly within their rights in the premises. Indeed, under such rule they were obligated to make such trivial repairs as might be necessary in order to use the cars furnished by the defendant, rather than to say that, because of such trivial defects which rendered the cars useless for the purpose intended, they would not use the same, but would hold the carrier liable for all damages which might result either on account of a falling market or otherwise because it failed, as it had agreed, to furnish cars suitable for the shipment which was to be made. We consider that there would be no difference, so far as the proposition of law is concerned, if the defendant in this case furnished cars to the plaintiffs for the shipment of their grain which were unsuitable for that purpose because they were not provided with grain doors or bulkheads, than if it had furnished cars to the plaintiffs for the shipment of their grain in which there were holes in the roofs or in the floors, and which grain, if it had been put in such cars, would have been damaged or destroyed before it reached its destination, as the shippers well knew. Under such circumstances would it not have been the duty of the shippers, if they attempted to use such cars, to repair the roofs or floors to the slight extent indicated, make the shipment and charge to the railroad company the cost of the repairs so made by them? At common law, or under all the laws that have been declared in the jurisprudence of this State, except as they may be modified by certain rules alleged to have been adopted by the Interstate Commerce Commission or by some Federal statute in the premises, there can be no doubt but that such was the obligation of the carrying company and of the shippers. The railroad company agreed to furnish cars, impliedly at least, at a certain station upon its railroad, at the instance of shippers of grain.
It was understood by both parties that the cars asked for and to be furnished would be suitable for transporting grain. In substance, by the agreement of the parties, the cars were to be at a certain station at a particular time, and the shippers of grain were to have it there ready to be put into such cars. The cars came as agreed, the grain came ready to be placed therein, but it was discovered that through some oversight, intentional or otherwise, the cars were unsuitable for the transportation of such grain and there was no provision made by the railroad company by which they could be made suitable. The shippers thereupon, at a comparatively trivial expense, made the cars suitable for the purpose for which they were intended, and in this action they are simply asking that the railroad company which has failed in the ...