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Read et al. v. Spaulding.

9. And if the defendant is liable only as a forwarder, he is not liable whether the injury at Albany was the result of carelessness or of inevitable accident.

II. The injury to the goods was the result of inevitable accident, and the defendant is not liable in any capacity.

1. It is impossible to imagine a case of an injury by the act of God or inevitable accident, if this be not one.

2. It was the result of the action of the elements, beyond human control. It was, in no proper sense, occasioned by the act of man, but in opposition to it, and it was an injury arising from a cause against which human foresight and sagacity could not guard. (Redfield on Railways, 232, 233; Forward v. Pittard, 1 Term R., 27; McArthur v. Sears, 21 Wend., 192; Williams v. Grant, 1 Conn. R., 487; Smyrl v. Niolon, 2 Bailey, 421; Faulkner v. Wright, 1 Rice, 108; Bowman v. Teall, 23 Wend., 306; Parsons v. Hardy, 14 id., 215; Harris v. Rand, 4 N. H. R., 259; Crosby v. Fitch, 12 Conn. R., 410; Morrison v. Davis, 20 Penn. R., 175; 1 Parsons on Contracts, SS 635–687.)

3. In the present instance the flood was sudden, and the water was four feet higher than ever before known. It was a result contrary to all human experience, and there was no negligence in not anticipating or guarding against it. The warehouse in which the goods were deposited was sufficient, in all respects, to protect the goods from injury by water against any flood then before known.

4. There was, therefore, no negligence on the part of the carrier or forwarder, by which the goods were unnecessarily exposed to injury.

5. There can be no recovery on the ground of delay between New York and Albany, where the goods were overtaken by the flood. The delay was not the proximate cause of the peril. (Morrison v. Davis, 20 Penn. R., 175.)

6. The delay in forwarding the injured packages after their injury is not shown to have subjected the plaintiffs to any special damage, or the goods to greater injury, and it cannot be inferred as a matter of law. The damage was occasioned solely by the water. If the goods were made worse by delay in sending them on, it was a matter of proof, and the plaintiffs gave no proof on the subject.

Read et al. v. Spaulding.

7. By the contract, no damage beyond $200 can be recovered upon the package No. 184.

It is submitted that, upon the facts of the case, the plaintiffs were not entitled to recover, and a new trial should be granted.

BY THE COURT-WOODRUFF, J. It was admitted on the trial of this action that the goods in question were delivered by the plaintiffs and received by the defendant at the city of New York, under the contract set forth in the case and called a bill of lading.

By that instrument, the defendant declares that he received the goods to be forwarded to the place named in the bill of lading, Louisville ; and that all property shipped on that bill of lading will be delivered at the depots of the Company or steamboat landing; and in providing against liability for deficiency in packages, it is agreed that no such liability shall exist if the goods “are delivered at Louisville depot in good order;" and the stipulation in respect to amount of freight plainly embraces the compensation to be made to the defendant for the entire transportation from New York to Louisville.

The admission on the trial that the defendant received the goods in connection with this contract, imports that the expression, “Spaulding's Express Freight Line” and “Spaulding's Express," mean the defendant, M. B. Spaulding.

I. Upon these facts we have no hesitation in saying that the defendant undertook to carry the goods, and was not a mere forwarder whose duty consisted only in receiving and delivering the goods to others to be carried.

The observations made in The Mercantile Insurance Company v. Chase, (1 E. D. Smith, 121,) where goods were delivered and received under a contract in terms very similar to that before us, are apt to express our views of the present case on this point; and Wilcox v. Parmelee, (3 Sandf. S. C. R., 610,) is to the like effect. The use of the term “forward” in the contract is controlled by the nature and extent of the actual undertaking, and did not make the defendant a forwarder in the technical sense of that word. An agreement "to forward from New York to Louisville” embraced carriage. It became the duty of the defendant to deliver the goods at Louisville. Whether the defendant used the term "carry," or "transport,” or “forward,"

Read et al. v. Spaulding.

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the goods from New York to Louisville is wholly immaterial, so long as he undertook the reception of the goods here and their delivery there. His duty embraced everything necessary to be done to accomplish a delivery of the goods at the place designated, and the compensation stipulated for in the contract was an expressed equivalent for the whole service. Whether the defendant used his own means of transportation in the service to be performed, or made his own private arrangement with others to perform the actual transportation, did not affect his relation to the owners of the goods with whom he had agreed to receive and deliver them. The fact proved, viz. : "that the defendant had no interest in or control over any of the routes or railroads mentioned in the said bill of lading, over which said goods were transported," does not therefore affect the relation of the defendant to the plaintiff in this respect, since the defendant assumed to deliver, and it thereby became his duty to provide the means ; and because, also, the bill of lading did not, expressly or by implication, specify any such routes or railroads otherwise than simply to say that the goods should be carried " via Indianapolis.”

Again, the provision that in case of loss from any cause for which Spaulding's Express should be liable, they shall have the benefit of any insurance thereon, and in case of loss on the lakes, the freight and charges to or at Buffalo shall be paid by the owner, plainly shows that the defendant's own understanding of the contract contemplated liability for loss in the course of transportation, which is obviously inconsistent with the claim now made that his duty was performed and his liability terminated by a mere delivery to others to be carried.

The only case in which a contrary doctrine has been held, is Hersfield et al. v. Adams et al., (19 Barb., 577, N. Y. Special Term,) and there the decision is mainly placed on the ground that the defendants were, by special contract, relieved from liability for the cause of loss there proved. So far as it declares that the defendants were not common carriers, the foregoing reasons forbid our concurrence therein.

II. The next and only other question urged upon our attention by the counsel for the defendant, is whether the injury to the goods happened under circumstances or from causes for which the defendant is responsible.

Read et al. v. Spaulding.

Unreasonable and unexcused delay in the transportation, and actual injury resulting therefrom, are the grounds upon which it is sought to charge the defendant.

By the agreement of the parties made on the trial, it is conceded that the actual injury arose from the goods being wet in the railroad depot at Albany; that the goods were, when wet, upon a floor in the depot at such an elevation above high water mark that goods thereon would not be injured by any flood such as had ever before occurred in the Hudson river at Albany; that the flood by which they were in fact injured, was a sudden rise in the water of the river, during the night, some four feet higher than it had ever risen before; that there was no negligence or omission of duty on the part of the defendant in not anticipating the occurrence of the flood; and that from the time it was apparent that there would be a rise of water, the goods could not have been prevented from being wet as they were.

Under this admission it is clear that if the defendant was without fault in exposing the goods to the action of the flood, he is not liable for the injury arising therefrom. If, in the due dis· charge of his duty, he had the goods in the regular and usual course of transportation, so that their being in the depot at the time was proper, then injury by the action of an extraordinary flood, rising higher than any flood had ever risen before, which it was no negligence or breach of duty not to anticipate, and from which, when the rise of water became apparent, the goods could not be delivered, is an injury by the act of God in such sense that the carrier is excused.

But the defendant had violated his duty and broken his contract, and was under the actual pressure of fault and neglect, without which the goods would have been safe.

The goods, in all consisting of eighty-six cases, were delivered to the defendant on the 27th day of January, 1857, to be carried and delivered to the plaintiff at Louisville. Eighty-one of these cases were carried and delivered within twelve or fourteen days after they were received in New York; that is to say, they reached Louisville on the 8th or 10th of February.

It was the duty of the defendant to deliver all the goods within a reasonable time, and according to the usual course of business over the route by which they were to be transported. There is

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Read et al. v. Spaulding.

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nothing in the case to indicate that the eighty.one cases which were so delivered were forwarded with any extraordinary or unusual speed, but the proof is that from ten to fifteen days is the usual time of conveyance. The presumption is, therefore, that if the defendant had performed his duty the five cases, which are the subject of controversy, would have reached Louisville at or about the same time with the others.

But these five cases were brought from the depot of the We tern Railroad to the depot of the Central Railroad, at Albany, on Saturday, the 7th of February, when, as before suggested, they ought to have been at or near their destination, Louisville, Kentucky. Whether this delay arose from the detention of the goods in New York, or at the depot of the Western Railroad, or at any intermediate point, is not stated. Nor is any explanation of the cause of delay given or attempted; while it is agreed that freight cars run daily from New York to Albany on the road by which these goods were to leave New York. If any explanation of this delay could be given, it was the duty of the defendant to give it. Enough was shown to cast the burden of proof upon him. He had undertaken to carry, and the delay was, prima facie, not only unreasonable, but apparently the result of gross negligence and want of attention, either in not beginning the carriage in due time or in delaying the progress of the goods after the transportation' was begun. It is not for the defendant to require that the plaintiffs should show the cause of the delay.

The result is, that the defendant was grossly negligent in the performance of his duty; this delay was a breach of his contract to carry and deliver within a reasonable time; and while so in fault, the goods in his charge were, in the night of Sunday, the 8th, or on the morning of the 9th of February, reached and injured by the extraordinary flood already mentioned.

But the defendant insists that, if the defendant was in fault in respect of the delay which had occurred, he is, nevertheless, not liable for the damage complained of; that, in such case, though the carrier be liable for delay, he is only liable for the immediate consequences of delay: by which he is understood to claim that he is liable only for such damages as the plaintiffs sustained irrespective of the injury to the goods by being wet in the flood at Albany; and, therefore, his damages are to be ascertained by

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