author: Robertson, Ch. J.

text:
    William Beck, administrator, &c. plaintiff and respondent, vs. The East River Ferry Company, defendants and appellants.
    1. The navigators of every vessel, especially in a crowded harbor, have a right to assume, and be governed by the assumption, that every one navigating other vessels has sufficient knowledge of navigation to avoid injury by collision, where it can be done, and will adopt the ordinary means used for the purpose, subject of course to those well settled rules of navigation which have been adopted in consequence of the greater facility of controlling at a particular time, one vessel in her course than another in a different one, or when they are propelled by different means. Even then, however, the managers of each vessel have a right and are bound,, to assume that every other vessel they meet will follow those rules. \
    2. Where the crew of a row boat saw a steamboat approaching, at a distance of forty or fifty feet, and could easily have taken measures for their safety and avoided all danger, an opportunity which they missed from want of vigilance, 1 and a collision occurred; Held, tha,t their negligenpe contributed to the disaster.

      3. There is no reason why the usual rule in cases of maritime collisions, which presumes against the vessel which has not a proper lookout, should not apply to a case of collision in a harbor, although one of the vessels is only a rowboat. Per Robertson, Ch. J.
    4. The managers of a steamboat have a right to suppose, when the oarsman in , a row boat continues to row, and the helmsman to keep the boat directly in their track, that the crew have sufficient confidence in their skill and ability to escape all peril. They are not bound to assume that the oarsman will stop rowing, and the helmsman abandon the helm, at the most critical period, in the midst of an overpowering current. Per Robertson, Oh. J.
    6. In case of a collision between a steamboat and a row boat, where none of the persons in the latter stand in the light of either employer or employed to the other, each one is chargeable with the negligence of his comrades, as well as his own.
    6. In an action against the proprietors of a steamboat, to recover damages for causing the death of a person previously on board a row boat, who jumped, iuto the water to avoid the consequence of a collision, and was drowned, whether the peril was caused by the negligence of the defendants is a matter of affirmative proof, as an essential part of the cause of action. Hence the burden of proving such negligence rests upon the plaintiff.
    (Before Robertson, Ch. J. and Garvin, J.)
    Heard October 14, 1867;
    decided July —, 1868.
    This action was brought by the plaintiff as administrator of his deceased son, Alexander Beck, to recover damages for the death of the plaintiff’s intestate through the negligence of the defendants.
    The complaint stated that in May, 1865, near the foot of East Sixteenth street, in the city of New York, in the East river, the defendants, by the fault and negligence of their servants, so navigated their steam ferryboat, called the Suffolk County, that it ran into, capsized, and crushed a small boat containing the deceased, who, by means thereof, without any fault or negligence of himself, was drowned and lost his life. Beck jumped out of such small boat before the ferryboat reached her; and at the time of the collision such small boat did not “ contain said Alexander Beck.” No motion was made to amend the complaint, or to conform the pleadings to the proofs. Every witness on the part of the plaintiff and defendants says that “Beck jumped overboard before the steamer struck the rowboat.” The judge charged the jury on that as an admitted fact. The defendant moved to dismiss the complaint on the following grounds: First That no question was presented for the jury, because the testimony shows that the deceased jumped overboard. That the steamer did not touch the boat in which he was until after he had jumped overboard, and there was no evidence that the steamer or any thing connected with it, or projecting from it, contributed directly to the drowning of the plaintiff’s intestate.

      Second. On the ground of negligence on the part of the parents of the boy in permitting him to expose himself to danger, and that the negligence of the deceased contributed to the injury.
    The defendants’ counsel also requested the court to charge, in case of refusal to dismiss the complaint, that the burden of proof as to negligence of the defendants was on the plaintiff. The court refused so to charge.
    That no action could be sustained by the plaintiff under any circumstances; except for the pecuniary damages he had sustained by the death of his son.
    The justice refused to dismiss the complaint, to which ruling the defendant’s counsel duly excepted.
    The jury found a verdict in favor of the plaintiff for $2000, and the defendants appealed from the judgment.

      G. Dean, for the appellants, .defendants.
    I. It was negligence for the plaintiff’s intestate, a minor unacquainted with the navigation of the East river, to go into a row boat across said river with others inexperienced in said navigation, and no one competent to manage the boat on board, ■ and this alone disposes of the plaintiff’s alleged cause of actiion.
    1. A man may row across an inland lake, but in Eew York there are a thousand steamboats and tugs, beside the tide, to direct, divert and change the course of vessels.
    2. Eegligence is always a question of comparison, not a mere question of fact to be proved by a witness. It would not be negligence to permit a child to cross alone a highway in the country. It would be negligence to permit such child to go alone on Broadway.
    H. The judge erred in refusing to dismiss the complaint. The negligence of the plaintiff’s intestate was apparent, and there was no proof of any negligence on the part of the officers of the ferryb'oat. If the small boat had kept on her course she would not have been touched by the ferryboat. “ To carry a case to the jury, the evidence on the part of the plaintiff must be such as, if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendant. It is not absolutely essential that the plaintiff should give any affirmative proof touching his own conduct on the occasion of the accident. The character of the defendants’ delinquency may be such as to prove prima facie, the whole issue, or the case may be such as to make it necessary for the plaintiff to show by independent evidence that he did not bring the misfortune upon himself.” (Johnson v. Hudson River Railroad Gompany, Per Denio, J. 20 N. Y. Rep. 73. See also, Deyo v. New York Central Railroad Company, 34 id. 9; S. C. 34 id. 14, 15; Cotton v. Wood, 98 Com. Law, 566; Toomey v. L. and B. Railroad Company, 91 id. 146; Wilds v. Hudson River Railroad Company, Per Denio, J. 29 N. Y. Rep. 326; Boldt v. New York Central Railroad Company, 18 id. 432; Sherman v. Rochester and Syracuse Railroad Company, 17 N. Y. Rep. 153; Wilds v. Hudson River Railroad Company, 24 id. 430; Ryan v. Fowler, Id. 410.)
    III. The judge erred in every part of his charge from fol. 120 to the end, fol. 132.
    IV. The judgment should be reversed and a new trial ordered, both on the law and the facts.

      L. K. Miller, for the respondent, plaintiff.
    I. The first exception, to the refusal to nonsuit, is not well taken. It is abundantly settled by authority, that in case of conflicting evidence as to negligence, the jury are the proper judges of the facts. (Drew v. Sixth Avenue Railroad, 26 N. Y. Rep. 49. Honigsberger v. Second Avenue Railroad, 1 Daly, 89. Ernst v. Hudson River Railroad, 32 How. Pr. 61.) The same remarks and authorities apply to the third exception, to the refusal to dismiss the complaint.
    H. The fourth exception to the charge is not well taken. The charge was most liberal to the defendants, and was, on various grounds, excepted to by the plaintiff/ which are not material here. The fact appears that the steamboat was not in the centre of the river, and was going over ten miles per hour, in both which the statute of April 12, 1848, was violated, and either of which imputed negligence to the defendants. The court did not so charge. The law as to the measure of damages was most leniently laid down for the defendants, contrary to the request of the plaintiff, and to the statute, as well as to the decisions. If the plaintiff does nót, the defendants should not except to this. (See Statute of 1847; and Oldfield v. Hew York and Harlem Railroad, 14 N. Y. Rep. 317.) So also as to the negligence of deceased in jumping out of the boat. The law might have been laid down much stronger against the defendants. (Buel v. New York Central Railroad Company, 31 N. Y. Rep. 314. See also, Mangam v. Brooklyn City Railroad, 36 Barb. 230; Quin v. Moore, 15 N. Rep. 433; McMahon v. The Mayor, 33 id. 642.)
    H. The errors in the charge are not those of which the defendants can complain, and the judgment should be affirmed, with costs.
   Robertson, Ch. J.

A dismissal of the complaint in this action upon the ground that the negligence of the deceased had contributed to his death was twice moved for, on the trial; first at the close of the plaintiff’s evidence, and again, after all the evidence in the case had been introduced. Two questions, therefore, arise: Whether there was an utter want of evidence upon that point, or if there was any, whether it was so conflicting as to require its submission to the jury; for if there was either no such evidence or there was such conflict, the verdict, so far as regards such motions, must stand.

It seems to have been conceded on the trial that there was some evidence of negligence by the deceased, as that question was submitted to the jury. The degree of skill of the crew of the boat he was in, is only material upon the point whether they employed proper means to guard against and avoid the accident in question, while they were propelling a boat by oars on the estuary where it occurred. The navigators of every vessel, especially on so crowded a highway, have a right to assume and be governed by the assumption, that every one navigating every other vessel on it, has sufficient knowledge of navigation to avoid injury by collision where it can be done, and will adopt the ordinary means used for the purpose, subject, of course,' to those rules of navigation which have been adopted in consequence of the greater facility of controlling at a particular time one vessel in her course than another in a different one; or when they are propelled by different agencies. Even then, however, the managers of each vessel have a right, and are bound to assume that every other they meet will follow those rules. The deceased was undoubtedly chargeable with any neglect of his comrades, as well as his own, to do every act to avoid danger and insure safety, at least unless he did all he could to repair the deficiency. None of them stood in the light of either employer or employed to the other, it was a joint expedition, in which each was liable for the acts and omissions of the other, unless he took some separate step to repair or prevent the result of the negligence of the others. Indeed, even in a case of injury from the collision of vehicles, a late case in the Court of Appeals, (Brown v. N. Y. Central R. R. Company, 32 N. Y. Rep. 601,) greatly shakes, if it does not overrule the doctrine apparently laid down in Colegrove v. N. Y. and N. H. Railroad Co. (20 N. Y. Rep. 492; S. C. 6 Duer, 382,) and Chapman v. N. H. Railroad Co. (19 N. Y. Rep. 341,) that the negligence of those having,control of a vehicle, in which a mere passenger is at the time, by the collision of which, with another vehicle, he is injured, is not so imputable to such passenger as to defeat his right of action against either owner.

The grounds of the charge of negligence against the deceased, are two fold: First. That he or his comrades did not keep a proper look out, and Secondly: That they did not use the usual effective means to avoid the danger of collision when imminent.

The evidence on the part of the plaintiff and defendants is widely different as to the time when persons on board of either vessel actually saw the other, without regard to the time when they might have seen it, if a vigilant look out had been kept. And such evidence is not at all conflicting. Both of the survivors of the crew of the row boat (McLean and Sutton) testified that the steamboat was only ten or fifteen feet off, when they first saw her, which was only a second or two before she struck them, and that their attention was first directed to her by hearing the splash of the deceased’s plunge in the water. McLean had previously testified before a coroner’s jury that the boats were then thirty feet apart; but he corrected himself on the trial. Sutton, on cross-examination; stated that he saw, instead, of merely hearing, the deceased jump into the water, and that the boats were not then over from eight to ten feet apart, precisely as he had testified before the coroner’s jury. He heard a splash, McLean told him a boat was coming, and he advised McLean to sit still. The moment he saw it coming, he was thrown right out. A laborer on the pier at the foot of Sixteenth street, (Fitzpatrick) did not see them until they were only half the breadth of the court room in. which the trial was had, apart; which, by McLean’s estimate, was not over fifteen feet. Kean, the captain of a sloop lying at that pier, first saw them when they were only five or six feet apart, and Douglas, who was loading such vessel, did not see them until the row boat was nearly under the guards of the steamboat. She was pulling round to get into the eddy, and the steamboat was coming around close in shore to such vessel, both boats being in the same line.

On the other hand a passenger, (Baker,) who was in the forward part of the steamboat when it arrived at Twelfth street, on its way to Hunter’s Point, saw the rowboat a “little ahead” of them, and inside of their course. He thought it took from a minute and a half to two minutes for the steamboat to have gone from 12th to 16th street. The pilot on board of the steamboat (Nelson) testified that when in the vicinity of 9th or 10th street he first saw the row boat inside of his course, opposite either 9th, 10th, or 11th street, about fifty feet from the bulkhead, lying perfectly still. He was farther out and kept on his course so as to clear them. Just as he came opposite to them, about a minute and half after he first saw them, being from forty to fifty feet apart, those in the row boat commenced to pull a little. He then pulled the head stop bell, when the wire broke. He then put his helm hard aport and called down the speaking trumpet to stop. He leaned out of the pilot house window and shouted out to those in the row boat to pull. The steamboat was stopped and he blew a long and heavy whistle with steam, before she struck the row boat. Baker testified that she stopped forty or fifty feet from the row boat, and that the latter was sixty feet off, when the captain called out to them to stop. The engineer (Davis) corroborated the pilot by testifying that he got a “ dead stop hell” to stop suddenly, and he stopped the engine; she might have made half a turn more afterwards. They lay there a few minutes (four or five) when he got a bell to go ahead, and went on. He also heard a voice calling him to stop. Baker also heard the whistle blown and the pilot halloo. The fireman of the steamboat (Doyle) testified that she was stopped and the engine unhooked. McLean, it is true, testified that the pilot was mistaken when he said they were lying still; but such a mistake was natural, considering the strength of the tide. None of the plaintiff’s witnesses saw or heard any alarm given on board of the steamboat, nor did they see her stop. McLean at first testified that the reason he did not see the steamer sooner was on account of a bend in the river, but he afterwards attributed the difficulty to some schooners outside the wharves. Sutton testified that they could not see down the river farther than 12th or 13th street, which was three or four blocks (of two hundred feet each) below where they first saw her. He did not see the ferry boat coming; he was looking up the river, and the deceased was looking sometimes up, sometimes down it. If they “had seen the boat at thirty feet distance” they “ might have got out of the way.” The bulk of the evidence seemed to show that the row boat was about forty or fifty feet from the 16th street wharf when her crew first saw the steamboat; and the plaintiff’s witness, Kean, testified that from that distance they could have seen down the river half a mile.

All this evidence, taken together, establishes plainly and without contradiction that the steamboat was not seen by the crew of the row boat, when she first came within the range of their vision, and that such failure to see her was the consequence of a want of a proper lookout by them. There is no evidence to disprove that when they came in sight of each other they were several city blocks or squares, being several hundred feet apart; that it took a minute or two for the steamboat, going at the rate of a mile in four minutes to overtake the row boat; that the pilot commenced to call out to those in the latter at the distance of sixty feet to row; that the steamboat was stopped at a distance of forty or fifty feet some minutes, and again started before the collision; and that the steamboat’s steam whistle was blown loudly; none of which things were seen, heard or known by any of the survivors of the crew of the row boat. The deceased was so taken by surprise that he sprang overboard without making a cry.

The distance between the boats had therefore been considerably shortened, and considerable time had elapsed before the crew of the row boat saw the steamboat and undertook to provide for their own safety. If, therefore, during that lost time, the crew of the row boat could easily have taken measures for their safety and avoided all danger, an opportunity which they missed from want of vigilance, their negligence contributed to the disaster. Captain Kean testifiedthat if a row boat was forty or fifty feet off from a pier and saw a steamer coming, it could get out of the way. Sutton thought that if the steamboat had been distant thirty feet, they could have got out of the way. Baker, • who was a lighterman, testified that even if the helmsman “ had put his helm hard astarboard, and the man at the oars had kept on rowing, she could have escaped.” Fitzpatrick testified that there was “ a big current and a heavy tide there, always. It comes down from Seventeenth street and strikes the corner there and flows out into the center of the river;” and that “the boat being swept along” by that tide, Sutton says he “let go the rudder and the tide threw them round.” Nelson stated that “the tide struck the back part of the row boat and swept it towards” his boat. “ They let themselves drift right towards his boat. The row boat struck near the bow of the steamboat and drifted along its side under the wheel” McLean testified that the tide turned them right round, when within ten or fifteen feet of the steamboat, which was the same distance at which he first saw her, and that they “ could not have' escaped even if Sutton had not pulled the rudder wrong, because of the strong tide that was against” them. The deceased, therefore, by not having sooner seen the steamboat, incurred this new difficulty which rendered his boat unmanageable by getting into this strong tide-way at the foot of Sixteenth street and letting it drift against the steamboat. If they had seen the steamboat at Twelfth street, before getting into such a current, they could undoubtedly have turned towards the still waters near the shore, out of the line of the steamboat’s course, and so escaped all danger. It certainly would have been little short of madness deliberately to have attempted to make head against the current in question, with oars, and keep in advance of the steamboat, going at the rate of a mile in four minutes while rounding the pier, if they had seen her. Their failure to see her before was owing entirely to want of vigilance on their part.

I see no reason why the usual rule in cases of maritime collisions which presumes against the vessel which has not a proper look out should not equally apply to the present case, although only a row boat is involved. The defendants had such a lookout, and endeavored to signal to, and avoid collision with, the deceased’s boat. If through inattention, the crew of the latter did not see the boat or hear the signals, the fault lies with them. The managers of the steamboat had a right to suppose when the oarsman in the row boat continued to row and the helmsman to keep it directly in their track, that the crew had sufficient self-confidence in their skill and ability to escape all peril. ■ They were not bound to anticipate the fit of panic that overtook them at the moment of the greatest danger, or assume that the oarsman would stop rowing and the helmsman abandon the helm at the most critical period, in the midst of an overpowering current. Upon this ground, therefore, I think, the deceased was chargeable with the negligence of his comrades and his own, particularly as the plaintiff is bound to explain every adverse circumstance and disprove negligence. (Button v. Hudson River R. R. Co., 18 N. Y. Rep. 248.)

If the crew of the row boat had seen the steamboat as soon as those on board of the latter saw them, they would have been guilty of negligence in not taking proper precaution to keep out of her way before getting into the tremendous tide-way at the foot of Sixteenth street, which she had power to stem and they had not. This was the only part of the management of the boat for which the deceased was not responsible, as he sprang overboard, before the rowing was stopped or the rudder quitted.

Eor these reasons alone, I think the defendants are enti- ■ tied to a new trial. But an exception was taken to a refusal to charge, which I think should also be sustained. The defendants’ counsel requested the court to charge the jury that the burden of proof of the negligence of the defendants -lay on the plaintiff. This must be the true rule even if the circumstances of the case otherwise establish such negligence. (Button v. Hudson River R. R. Co., 18 N. Y. Rep. 248.) The deceased came to his death by drowning, having plunged voluntarily into the water, to avoid being run over by the steamboat. Surely, whether the peril was caused by the negligence of the defendants must be a matter of affirmative proof, as an essential part of the cause of action. And this is the more essential in this case, because the learned judge charged the jury that the velocity of the steamboat’s motion might be some evidence of negligence and a reason for supposing they were negligent in the management of their boat, which I apprehend to be contrary to settled principles. (Wilds v. Hudson River R. R. Co., 29 N. Y. Rep. 326. S. C. 24 id. 430. Ryan v. Fowler, Id. 410. Sherman v. Rochester and S. R. R. Co., 17 id. 173. Boldt v. N. Y. Central R. R. Co., 18 id. 432.)

The judgment should be reversed, and a new trial had, with costs to abide the event.


source: Caselaw Access Project

author: By the Court, Robertson, Ch. J.

license: Public Domain

text:
    Elizabeth Gonzales, administratrix, &c. plaintiff and respondent, vs. The New York and Harlem Railroad Company, defendants and appellants.
    1. Where a person alleged to have been killed upon the defendants’ railroad, by negligence of the defendants or their employees, while stepping upon the ground from a train of cars, near a station, was proved to have been struck by an express train, so that he fell under the wheels of the train from which he came, and was run over; Held that this was sufficient proof that he came to his death by the acts'of the defendants’ agents.
    2. It is clearly negligence for a train of cars to approach a cross road without the blowing of a whistle, or ringing of a bell, to give notice of its approach.
    3. It is not negligence to cross a railroad track, where there is nothing to notify a traveler on the highway crossing it, that a train of cars is approaching.

      4. It seems that all persons crossing a railroad, on a highway, are not bound to know the time when a train of cars may he expected, according to the time table of such road. Ter Robertson, Ch. J.
    6. Although travelers on a road may he hound to use, and are entitled to rely on, their senses to discover any approach of danger, yet they are entitled to expect that, where the sight cannot he Used, the means provided hy law for warnings, addressed to the sense of hearing, shall he used hy trains of cars on railways crossing such road.
    6. Under the decision in Ernst v. The Hudson River Railroad Company, (35 N. 7. Rep. 9,) a traveler on the highway is not hound to look out for a train of cars, when the law requires the railway company to give signals of its approach. Nor is a passenger, descending from a train at a station, hound to look out to see whether another train is approaching, before he crosses the track, where no signal to that effect has been given. And this, although by the time table, another train is nearly due at that station.
    7. Neither the vicinity of a person’s residence to a railroad, nor his habit of traveling on it, or his familiarity with its time tables, make any difference as respects his right to he informed, by the usual signals, of the approach of a train of cars.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ,)
    Heard December 7, 1867;
    decided July —, 1868.
    This was an'action to recover damages for the negligence of the agents and employees of the defendants, hy which the plaintiff’s husband (John H. Gonzales) was killed. The complaint, after the usual allegations as to the incorporation of the defendants, and their ownership of the road, alleged, that about the 15th day of November, 1864, at the city of New York, the said John H. Gonzales became a passenger in the defendants’ cars, for the purpose of traveling from said city to "West Mount Vernon, a station on the road, being one of a train of cars running from the city to that station, and beyond; that, while Gonzales was a passenger in such car and train, as he was carefully, and without any negligence on his part, in the act of stepping out of the same at the West Mount Vernon station, for the purpose of leaving to go to his home, situated within á few rods of such station, another train of cars, belonging to the defendants, being an express train, .under the care and control of the agents and employees of the defendants, came at full speed on the adjoining track of the defendants’ road, in the opposite direction, and carelessly and negligently ran against Gonzales, and did push "and throw him under the wheels of the first mentioned train, and the same passed over his body, thereby breaking and crushing his legs and body, and otherwise mangling, bruising and lacerating his body; that such injuries to Gonzales were caused and produced by the carelessness and negligence of the agents and employees of the defendants so having the charge and control of those two trains of the defendants, and without any carelessness or negligence whatever on the part of the said Gonzales; that by reason of the premises, about the 15th day of November, 1864, Gonzales died of the injuries received by him as aforesaid, through the carelessness and negligence of the defendants aforesaid, and intestate: that about four days afterwards letters of administration were duly granted by the surrogate (to whom jurisdiction in that behalf belonged) upon the estate of the said deceased unto the plaintiff, (being the widow of Gonzales;) that the death of Gonzales was caused solely by the aforementioned act, neglect and default of the defendants, perpetrated by their agents as aforesaid. Wherefore, the plaintiff demanded judgment against the defendants, for the sum of $5000, together with costs and disbursements.
    The answer was a general denial, and alleged that the death of Gonzales was caused wholly by his own negligence and carelessness.
    The action was tried before Justice Garvin and a jury. The following facts appeared: John H. Gonzales, the plaintiff’s deceased husband, had resided about fourteen years at West Mount Vernon, about one hundred yards west of the West Mount Vernon station, upon the defendants’ road. There was a double track, and a platform for passengers on each side of the road. On the westerly side of the track was the depot and a platform for passengers to get in and out of the cars when going southerly, and on the easterly side was a platform for passengers traveling northerly. The easterly platform was one hundred and eighty-five feet long, and the southerly end of it came within a few feet of the northerly side of the cross road above mentioned. Gonzales was in the habit of traveling very frequently on the road, and of coming to his home by the train on which he was injured. 1 His house was in sight of the station. The time for the train in question to .leave "West Mount Vernon, proceeding northerly, was, by the time table, 3.27 r. M. It was an accommodation train, and necessarily, varied slightly in its time of arrival and departure, owing to variations in the numbers of passengers and detentions at the previous way stations. The express train going south (which did not stop at that station) was due there at 3.28 p. m. It was in the habit of meeting the above mentioned accommodation train sometimes north of the station, sometimes south of it, usually south of the station ; there being but one minute difference between the time of the two trains at that station, according to the time table, and the accommodation train being liable to detentions at way stations, which would prevent its being exactly on time. On the 15th day of November, 1864, Gonzales left New York for his home on the above mentioned aecomdation train. When the train was approaching the station, and before it had reached its usual stopping place, Gonzales jumped or got off of the car he was on, on the westerly side, and landed in the cross road above mentioned, at the -same moment the express train, going south, passed down ■on .the west track. There was about three feet space between the cars of the two trains, there being seven feet distance between the tracks, and the cars projecting two feet on each side. In some manner not explained, Gonzales got under the wheels of one of the cars belonging to the train which he had just left. He was dragged a short ■distance; when the cars stopped he was found under the wheels, with both legs crushed, and died from his injuries. His body, when extricated from under the car, lay on or near the north line of the cross road. The track was straight, and the view' unobstructed for a distance of more than five hundred and fifty feet northerly from the place where Gonzales got off. A witness for the defendants, a surveyor, proved that an approaching train was visible at the distance of over twelve hundred feet from that point. The" plaintiff’s witnesses conceded five hundred and fifty feet, and admitted that from the station the smoke of an approaching train could be seen at the distance of eleven hundred feet. The brakeman of the defendants testified that, from the rear of the rear car, he leaned over and saw the approaching express down train before it reached the up train. There was no proof that any whistle was blown or bell rung upon the approaching train, before it came up. The jury found a verdict in favor of the plaintiff for $4000.
    A motion was made on the judge’s minutes for a new trial, on exceptions, and on the ground that the verdict was against the weight of evidence. An order was entered denying the motion, and an appeal was taken from that order, as well as from the judgment.

      C. A. Rapallo, for the appellants, defendants.
    1. The verdict was against the weight of the evidence. It was clearly and distinctly proved by one witness on the part of the plaintiff, and four witnesses on the part of the defense, that the train Gonzales left, was moving towards the station when he got off or jumped off. The plaintiff’s witnesses, Heller, Patridge, engineer of the down train; Verdón, the conductor; McAuliff, the brakeman; and Richard O’Connor, the baggage master, testify that the train was moving. The only opposing testimony is that of Lavinsky. His statement is extraordinary and incredible, but if true, it does not contradict Heller, or Patridge, or Verdón, who are the only other witnesses who saw Gonzales get off, and who testify positively that the train was not then stopped. The stoppage testified to by Lavinsky was but for an instant. His back was to Gonzales, and there is no evidence that Gonzales got off during this alleged instant of stoppage.

      II. The court should have dismissed the complaint. The undisputed facts show gross negligence- on the part of Gonzales in getting off on the west track, when the express train was due, and before his own train had reached its stopping'place. If to save time he undertook to get off before the defendants had reached the place for discharging their passengers, he did so at his own peril, and the company should not be held responsible. They were not bound to anticipate that passengers would get off before the cars reached their stopping place, or to take precautions to make it safe for them to do so. Furthermore the manner of his getting off was grossly negligent.
    III. The court erred in admitting testimony that Gon.zales and others were in the habit of getting off on the west side, instead of using the platform. If it was negligence to do so on the occasion in question, the fact that he and others were habitually negligent was not a sufficient answer. The testimony was calculated to mislead the jury. There was no evidence that the employees of the road ever sanctioned passengers in getting off on the west side when the express train was due, nor who the employees were, nor what was the extent or nature of their authority. The exceptions to this testimony were well taken.
    IV. The exception to the refusal of the judge to charge the second proposition, as requested, was well taken. The defendant was entitled to a specific instruction on that point for the only negligence which could possibly be attributed to the defendants was the alleged omission of the express train to blow the whistle. If' not guilty of this omission there was no negligence whatever on the part of the defendants. Two witnesses testify positively that the whistle was blown. The engineer who blew it, and the brakema-n of the up train who heard it' and looked out. The only testimony opposing was that of persons who say they did not hear it. If the jury believed the engineer, they were bound to render a verdict for the defendants, -and should have been so instructed, clearly and positively. On the contrary, from the. instructions given the jury, they might infer that the judge ruled adversely to that request.
    V. Under the circumstances attending the alighting of Gonzales from the car he was on, it was his duty to have looked along the line of the road before alighting or going on the west track.
    1. The express train had not passed, and Gonzales knew, or by a moment’s reflection would have known, that it was to be expected every instant. He could not with safety depend upon hearing the whistle, as the noise of Ms own train would be likely to drown it. He was about to get out at a place other than that provided for the landing of passengers, and before his train had reached its stopping place. The track was straight and his view unobstructed for a distance of over five hundred and fifty feet, at the lowest estimate. The approaching train, even if traveling at thirty miles an hour, was not going more than ten times as fast as a man usually walks; it must, therefore, have been within less than one hundred feet of Gonzales, when he alighted. Under these circumstances, if the court did not see fit to nonsuit, it should at least have instructed the jury, as requested, that it was the duty of Gonzales to look out before going on the track. The refusal of this instruction, and the limited instruction given, authorized the jury to assume that it was not negligence in Gonzales to jump on the track without looting or taking any precaution whatever against accident from a down train.
    2. The well established and salutary rule, that a person about to go upon the track of a steam railroad is bound to look before doing so, has not been abrogated; and the omission to look is excused only in certain exceptional cases, of which this is not one. The question is clearly presented in this case whether that rule is still in force. If it is, the exception taken to the. refusal to Charge the defendants’ third proposition, and to the exception to the charge as given, were well taken. The case of Ernst v. Hudson River Railroad Company, (35 N. Y. Rep. 9,) does not abrogate the rule, or overrule the previous cases. But even if it should be considered as having that effect, and should the opinion of Hon. Justice Porter be held to state the law correctly, still this is one of the cases in which even .according to that opinion a party is bound to look before going on the track. (See 35 N. Y. Rep. 36, 47, 48; Beisiegel v. Central Railroad Company, 34 id. 622; Spencer v. Utica and Syracuse Railroad, 5 Barb. 337, 339; Haring v. Erie Railroad, 13 id. 9, 15; Dascomb v. Buffalo and State Line Railroad Company, 27 id. 222, 226, 227, 229; Brooks v. Buffalo and Niagara Falls Railroad, 25 id. 600; North Pennsylvania Railroad v. Hitman, 49 Penn. Rep. 60; Steves v. Oswego and Syracuse Railroad, 18 N. Y. Rep. 422, 425, 426; Wilds v. Hud, River Railroad, 24 id. 430, 440; S. C., 29 id. 327, 328, 331.)

      R. W. Van Pelt, for the respondent, plaintiff.
    I. The objection and exception of the defendants to the proofs offered, as to which side the deceased always got off the train were not well taken. As the defendants set up contributing negligence on the part of the deceased,- it was competent to show that he and other passengers had always got off on that side with perfect safety; that there was no notice or prohibition on the part of the company against such practice, but, on the contrary, their agents and employees were in the habit of giving it their sanction, by assisting them to get off on that side, and this state of facts is uncontradicted.
    II. None of the exceptions to the judge’s charge, and to his omissions to charge as requested, are well taken. The charge covers the entire case, and is in perfect conformity with the rules and principles laid down in the' leading modern cases. (Beisiegel v. New York Central Railroad Company, 34 N. Y. Rep. 622.) In the opinions in that case, all the authorities bearing .upon the question of contributing carelessness, are carefully examined, and the charge of his honor, Justice Garvin, was given with that case before him.
    ITT. The jury were charged expressly that to entitle the plaintiff" to recover, negligence must not only be shown on the part of the company, but an entire absence of negligence on the part of the deceased must also be shown.
    IV. The evidence abundantly sustains the verdict, and the judgment should be affirmed.
   By the Court, Robertson, Ch. J.

One of the witnesses in this ease, (W. S. Seller,) who saw the whole accident, testified expressly, that as the husband of the plaintiff was stepping on the ground from the steps of the car from which he descended, the express train came down and struck him. This was sufficient proof that he came to his death by the acts of the defendants’ agents. Two witnesses, Mr. LavinsM and Mrs. Zimberland testified that they did not hear any whistle sounded, or bell rung when the express train came down. The former stated he thought he would have heard, it. The latter, who was looking out for her children on the track,» and heard no whistle or bell of that train, always watched that train more than the up train, because the former did not stop. She testified that no whistle was sounded until the express train had passed by the station where the plaintiff was killed. About five or six hundred feet north of that place was a curve on that road. One whistle was given by the express train while approaching that curve, and one after passing it. This was merely a signal to brake up. But such train could not have been stopped before reaching the station, and there was no evidence of any steam whistling or sounding of bells while approaching the cross-road, where the plaintiff’s husband was killed. This was clearly negligence on the part of the defendants. (Renwick v. N. Y. Central Railroad Co., 36 N. Y. Rep. 132.)

It only remains to be determined whether the plaintiff’s husband was guilty of concurrent negligence. That question was fairly submitted to the jury. So that unless the evidence is conclusive upon that question, the verdict must be sustained. There was some conflicting evidence as to the stoppage of the train, from which the deceased descended. Lavinski testified it stopped a very little, and then went on. Heller says the stopping and the stepping off of the deceased was simultaneous. Some other witnesses testified that it was moving until the accident happened. The locomotive of that train had then reached a platform, where such trains usually stopped, and the deceased was injured on a crossing twenty to twenty-five feet from such platform. The learned judge, before whom the issues in this case were tried, submitted to the jury the question whether the decedent’s “ getting off on that side of the car, going toward the passenger depot, and being on that side, and the public highway being just where he got off',” was the exercise of ordinary care and prudence.

It is not negligence to cross a railroad track where there is nothing to notify a traveler on the highway crossing it, that a train of cars is approaching. I do not know that all persons crossing a railroad on a highway are bound to-know the time when a train of cars may be expected according to the time table of such road. They are undoubtedly bound to use, and entitled to rely on their senses to discover any approach of danger, but are entitled to expect that when the sight cannot be used, the means provided by law for warnings addressed to the sense of hearing shall be used by railway trains. (Ernst v. Hudson River R. R. Co., 32 How. 61. S. C. 35 N. Y. Rep. 9.) Under the decision in the case last cited a traveler on the highway crossing a railway, is not bound to look out for a train when the law requires the railway company to give signals of its approach. (Id.) Unless the deceased was imperilled by descending from the cars while in motion, he was guilty of no more negligence in being where he was, when struck by the express train, than if he had been walking across the track. His having previously been a passenger upon another train of cars made no difference. The learned judge charged the jury that if the train had not stopped when the deceased got off, the plaintiff could not recover, and their verdict disposes of that question.

There were five requests made by the counsel for the defendants for instructions to the jury. The second of which was in substance that the express train being visible at a distance of 550 feet, and being nearly due, it was negligence for the deceased not to have looked in the direction in which it was expected, before going on the track. This was directly contrary to the principle adopted in Ernst v. Hudson River R. R. Co. (ubi supra,) and was properly refused. The other requests related to the stoppage of the car when the deceased got off, the blowing of the whistle to brake up, a sight of the express train by the deceased, and the lateness of that train, all of which have been disposed of, except the last, and there was no testimony requiring such instruction. There was no evidence whether the express train was late or not; the engineer simply stated that either it was ahead of time or the up train behind, a fact which had no bearing, except to show that according to the time table, the deceased had a right to expect to have a minute in which to cross, before the train came down. I do not think that the vicinity of the deceased’s residence to the road, or his habit of traveling on it, or familiarity with its time tables, made any difference as to his right to be informed by the usual signals of the approach of a train. A great many reasons might prevent the arrival of the train in time. The law having provided a better means of warning him of danger, he was entitled to rely upon its being complied with.

I think the judgment should be affirmed, with costs.


author:
By the Court, Barbour, J.
      Robertson, Ch. J.

text:
    Christopher Tyler, plaintiff, vs. James J. Barrows et al. defendants.
    1. By an executory contract, the defendants agreed to sell and deliver to the plaintiff’s assignors, at a specified price, a certain number (3000) of barrels of petroleum oil, by installments consisting of a certain number (500) of barrels each, at intervals of fifteen days, until the whole was delivered, provided the buyers gave notice, at such times, of their intention to receive the same. And the buyers agreed to pay that price for so many of said installments as they should notify the defendants of their intention to take, and should receive, and also to pay a certain sum ($1000) for every one of such installments which they should fail so to notify the defendants of their intention to take. Held that although it did not appear that the defendants owned any oil at the date of the contract, such contract was not necessarily a wager contract; because the buyers might elect to take all the oil agreed to be delivered, and the sum agreed to be paid for the option of taking or refusing the oil was not necessarily a sum staked upon any event; and unless such contract was incapable of any other construction, or there was extrinsic evidence to show that the parties intended to lay a wager, by means of it, it was not objectionable.
    2. Held, also, that there was nothing in such a contract to deprive it of the quality of assignability. The right of electing to take the oil was property capable of being transferred, and included the right of giving notice, as an incident thereof.
    (Before Robertson, Ch. J., and Barbour and Monell, JJ.)
    Heard April 11, 1866;
    decided February —, 1868.
    This action was brought to recover damages for the nonperformance by the defendants of a written agreement. The complaint alleged:

      First. That during all the times hereinafter mentioned, the defendants were co-partners in trade, doing business in the city of New York, under the firm of Barrows, Haselton & Co.

      Second. That on the 31st day of May, 1864, the defendants, under their firm name, and Messrs. Fabricotte Brothers, merchants, in the city of New York, entered into an agreement in writing, through Sergeant & Hunt, brokers and agents, duly authorized to make the same, both on behalf of the defendants and of said Fabricotte Brothers, in the following words and figures:
    “ New York, May 31st, 1864.
    Sold for account of Messrs. Barrows, Hasleton & Co.' to Messrs. Fabricotte Brothers, three thousand barrels of standard light straw to white refined petroleum in bond, testing 110% (heat test) and upwards, @ (65cts.) say 65 cents per gallon, net cash, deliverable in yard or alongside lighter.
    This contract is made subject to the following conditions, viz: Buyers to notify sellers, on the first day of July next, of their intention to receive five hundred barrels of the quantity above mentioned; on the 15th of the same month, and so on, every fifteen days, in like manner, notice shall be given of the intention to receive five hundred barrels, until the whole three thousand barrels shall be delivered ; or, in case no notice is given, as above stated, buyers agree to pay to sellers two dollars ($2,) per barrel on the several days on which no notice should have been given, viz: $1000 on the 1st and 16th of July, August and September, in consideration for this contract, 'barrels to be all in prime shipping order, gauged by a government gauger, and buyers to furnish evidence of export.” And after-wards, on the 2d day of June, 1864, the defendants further approved of said agreement by writing across the face thereof, the words and figures following, to wit: “June 2d, 1864, accepted ‘ Barrows, Hazleton & Co.’ and the defendants duly delivered said written agreement to Fabricotte Brothers.”

      Third. That thereafter, for a valuable consideration, Fabricotte Brothers duly assigned and transferred said contract and all their interest therein to Messrs. H. Santler & Weirum, merchants of the city of New York, and who, on the 30th day of June, 1864, for a valuable consideration, assigned said contract and all their interest therein to the plaintiff.

      Fourth. That thereafter, on the 1st day of July, 1864, the plaintiff duly notified the sellers, the defendants herein, that he was the owner and assignee of said contract, and intended to receive five hundred barrels of said quantity of 3000 barrels, on the 15th day of said July; and every fifteen days thereafter in like manner notified the defendants of his intention to receive 500 barrels of said quantity of 3000 barrels, as provided in said contract; and that on the days respectively when said 500 barrels should have been so, delivered, the plaintiff duly notified the defendants that he was ready to receive the same in accordance with, and upon the terms of said contract, and was ready to pay for the same upon the delivery, and demanded that the defendants deliver the same. That in all things, at the time and times named in said contract, the plaintiff fully, and in every respect, performed the conditions thereof; and was ready and fully prepared with the cash to pay for said 500 barrels of petroleum on the respective days when the same should have been so delivered.

      Mfth. That the defendants refused to deliver, and did not deliver, said 500 barrels of petroleum, on the 15th day of July, 1864, nor- at any time thereafter; but refused to deliver, and did not deliver any of said petroleum as agreed, and as they were notified and required to do; that they entirely refused to perform said contract in whole and in part, and had not performed or complied with any of the conditions thereof, and that the time for any and all deliveries of petroleum under said contract had expired.

      Sixth. That by reason of such refusal and neglect of the defendants to deliver said petroleum as before stated, the plaintiff suffered damages to a large amount, ($17,200,) with interest on various portions thereof from six different dates, on the 1st and 15th of every month, beginning on the 15th of July, for which sum of $17,200 and interest as aforesaid, the plaintiff demanded judgment, besides costs.
    The defendants, by their answer, admitted that the firm of Barrows, Haselton & Co. entered into the agreement set out in the complaint, but denied, that the defendant Levi Kerr, was a party to said agreement or contract, or that any notice was given to the defendants as required by the contract set out in the complaint, or according to the terms of said contract or agreement. The defendants further alleged that they had no knowledge or information sufficient to form a Relief whether the said Fabricotte Brothers assigned the agreement set out in the complaint, or whether any assignment was made of said agreement, by any person or persons, to any other person or persons, whatever; but averred that neither of them, nor any one in their behalf, assented to any transfer of said contract, and he denied all right of said Fabricotte to transfer the same without the assent of the defendants.
    At the trial, before Justice McOunit and a jury, the plaintiff proved the making and execution of the agreement sued on, and the assignments thereof set forth in the complaint. When the plaintiff rested, the counsel for the defendants moved to dismiss the complaint on the grounds that,
    1st. The contract was not assignable, there being a mutual obligation between the parties, the defendants having relied, in making the contracts, on the pecuniary responsibility of Fabricotte Brothers.
    2d. The contracts provided that notice should be given by the buyer (and not the assignee,) whether he would take or not, and no such notice had been given.
    3d. It was a wager contract, and void by the statute against betting.
    The court denied the motion, and the defendant’s counsel excepted to each refusal, on'each separate ground. The defendant’s counsel putin evidence the following notice and demand, addressed to Fabricotte Brothers, signed by the defendants, and dated,
    “Hew York, July 2d, 1864.

      Q-entlemen; As you failed to notify us on the first day of July of your intention to receive 500 barrels refined petroleum on the 15th inst. as per contract, you will please send us your check for one thousand dollars, in accordance with said contract, and much oblige, Yours, respectfully.”
    Also an answer thereto, addressed to the defendants, signed by Eabricotte Brothers, and dated,
    “Hew York, 5th of July, 1864.

      Gentlemen: We were somewhat surprised at reading the contents of your letter of the 2d inst. knowing that the buyers to whom we sold the contract of the 3000 barrels petroleum had not neglected to notify you in due time that they were ready to receive (as per contract) on the 15th of this month, the first delivery of 500 barrels; under these circumstances we consider our obligation in the matter entirely at an end. We remain, gentlemen, yours truly.”
    It was admitted by the defendants that an action was theretofore commenced by the defendants to recover $2 per barrel under this contract, which action is now pending. The counsel for the defendants asked the court to instruct the jury that under no circumstances, after the notice given, were the defendants (Barrows, Haselton & Co.) liable for any thing but the damage for failing to deliver the first 500 barrels, which the court refused to charge, and the defendants’ counsel excepted to such refusal. The court directed the jury to render a verdict for the plaintiff for the sum of $19,000; to which the defendants’ counsel excepted. The court then, on the trial, ordered the exceptions to be heard in the first instance and no judgment to be entered until their hearing and decision at general term.

      S. Huntley, for the plaintiff.

      G. Dean, for the defendants.
   By the Court, Barbour, J.

The defendants claim that the agreement in question is a wager contract, and, therefore, void; and, also, that such contract is not assignable. Ho other objections to the verdict or claim were made by counsel at the hearing.

The word “ sold,” in the contract, imports an absolute and complete change and transfer of the ownership of the oil from the vendor to the vendee; and I do-not find anything in the case tending to show that such was not the fact. Assuming, then, as we- may, that the word “ sold,” in its . connection, imports a declaration on the part of the defendants that their ownership has been vested by them in the purchasers, the case seems to be simply this : In consideration of the sale, and an implied agreement on the part of the vendors that they will keep and store the property until demanded at the several times mentioned, being an average of three months, the purchaser undertakes to demand the oil, in parcels, at each of those several times, or, in case, he shall fail to do so, pay to the former $1000. The motives which induced the vendors to insert that provision in the contract as a condition of the sale, do not appear. Possibly, it was to insure the withdrawal of the oil on the days mentioned, in order that their premises might, certainly, be ready for the reception of other goods; and, also, perhaps, to relieve them then from all liability as bailees, as well as upon their bond, at the custom house. It is unnecessary to speculate upon that subject, however. Looking upon the contract in this light, and considering it, merely, as an agreement on the part of the purchaser to. perform a certain act, or to pay a forfeiture in case of default, there can be no possible reason for supposing it to be a wager contract. ' It is not an agreement to pay money upon the happening or not of a contingent event, any more than would be an agreement to build a house within a limited period, or in case of failure, to forfeit and pay a certain sum.

Having thus arrived at the conclusion that the agreement is valid, it is hardly necessary to declare that the purchaser could make an assignment and transfer of his right to demand and receive the oil.

The exceptions should be overruled.

Robertson, Ch. J.

The contract on which this action is founded, does not refer to any specific quantity of petroleum oil, nor was any particular lot referred to by the parties. It does not even appear that the defendants owned any oil, at the time they entered into such contract. It, therefore, did not transfer the title to any specific merchandize, but was a mere executory contract by the defendants, to sell and deliver at the rate or price therein mentioned, ■ three thousand barrels of the kind and quality of oil described therein, by installments of five hundred barrels each at intervals of fifteen days, until the whole was delivered, provided the buyers, (Fabricotte Brothers,) gave notice at such times, of their intention to receive the same. And such buyers thereby agreed to pay such price for so many of such installments as they should notify the defendants of their intention to take and should receive, and .to pay one thousand dollars for every one of such installments, which they should fail to- notify the defendants of their intention to take.

Such a contract was not necessarily a wager; because the buyers could elect to take all the merchandize agreed to be •delivered, and the sum agreed to be paid for the option of taking or refusing the merchandize was not necessarily a .sum staked upon any count. Such contracts are constantly made, and unless the contract in question is not susceptible •of any other construction; or there is extrinsic evidence to .show that the parties intended to lay a wager, by means of it, it is not objectionable. (Cassard v. Hinman, 1 Bosw. 207.)

There was nothing in this contract to deprive it of the quality of assignability. There was no agreement for the rendering of personal services, or doing any thing dependent upon personal qualities, and the price was to be paid in cash. The defendants .could demand nothing more from the buyers or their assignees, than the payment of the stipulated price, which was tendered. The right of electing to take the oil, was property capable of being transferred, and included of course the right of giving notice, and all other rights flowing therefrom. .

The amount of the verdict, although it follows the highest rate of the price of oil at the different dates it was deliverable as testified to, seems not to have been objected to, and no request was made to submit the amount to the jury. I therefore, concur in overruling the exceptions, and rendering judgment for the plaintiff, for the amount of the verdict, and the costs of the hearing.


author: By the Court, Robertson, Ch. J. Monell, J. (dissenting.)

text:
    Vernon H. Brown et al. plaintiffs, vs. Russell H. Post et al. defendants.
    1. Commissions for procuring the charter of a vessel in the port of New York are payable as soon as the charter is effected, and do not depend upon freight being taken or earned, or upon the voyage being completed.
    2. The per centage to be allowed the ship brokers is to be estimated not by the ultimate profits actually derived from the adventure, but by what they would be, if it were successful.
    3. The plaintiffs, being ship brokers, procured for the defendants a charter of a vessel for a voyage from New York to Cape Town and thence to Mauritius or Batavia, the freight to be a certain sum($l) and five per cent primage, in gold, per barrel. ^ The charter-party provided that the charter money should be settled, if at Cape Town or Mauritius at a certain rate of exchange in sterling (four shilings and two pence) for the price so fixed per barrel; if at Batavia, at a certain other rate of exchange in the currency of the country (two and a half guilders) for the price so fixed. No cargo being ever supplied to the vessel, the charter was not performed. Held that the plaintiffs were entitled to recover, as their commissions, five per cent on the value in New York of the amount of sterling currency susceptible of being earned at Mauritius, under the instrument.

      4. A contract to be completed in a foreign country, the compensation for which is payable in the money of account, or currency, or coin of that country, is to be considered as performable there, at least so far as the place, at which the value of such currency, money or coin is to be estimated at the locus fori is concerned; particularly as the charterers would have a lien on the freight at the place of delivery of the cargo.
    (Before Robertson, Ch. J., and Barbour and Monell, JJ.)
    Heard April 8, 1868;
    decided July —, 1868,

      Action by brokers for their commissions.
    The plaintiffs are ship brokers. They procured for the defendants a charter of the brig “ Francis J. King.” The verdict of the 'jury establishes that they are entitled to a commission of five per cent on the amount of the charter. The charter was for a voyage from New York to Cape Town, C. G. H. and thence to Maritius.or Batavia; and the defendants were to receive for the use of the vessel one dollar, and five per cent primage in gold, per barrel. The charter-party provided that the charter money should be settled, if at Cape Town or Mauritius, at the exchange of four shillings and two pence sterling to the dollar; if at Batavia, at the exchange of two and a - half guilders to the dollar. The only question in the case was whether the amount upon which the plaintiffs were entitled to a commission was the equivalent in United States legal tender currency of the amount to which the defendants would have been entitled in foreign currency upon performing the charter, or only the same number of-legal tender dollars as the charter calls for in gold.
    The jury found for the plaintiffs, and the defendants’ exceptions were ordered to be heard, in the first instance, at the general term.

      John- JE. Parsons, for the plaintiffs.'
    I. "What the parties intended is perfectly obvious. Gold, at the execution of the' charter, was selling at 212. That is, practically, the defendants intended to have for the use of their vessel, in currency, 2 12-100 times the amount in gold for which the charter stipulates; and the charterers agreed to pay this. The defendants agreed to pay the plaintiffs five per cent of this amount for their services. The plaintiffs’ services were of that value, and for the defendants to compel them to accept less is to cheat them of more than' one-half the value of their services, and of the amount on the promise of payment of which the defendants secured those services.

      II. It is impossible to ignore the practical difference between United States gold coin and the treasury notes which congress has in certain cases made its nominal equivalent. -The United States itself recognizes practically and by its legislation that difference. The payment of duties is compelled in coin; and on certain of the treasury issues both principal and interest are made payable in coin.
    III. Does then any principle of law require that the intention of the parties and good faith and fairness as between them should be violated ? We say not, for the reason that the charter-party was a contract, the charterer’s obligation in which was to be performed abroad where the defendants could have compelled payment according to the rate of exchange prescribed by it. “ Eor the purpose of construction and ascertaining the intention of the parties the place of performance is the place of contract.” [Monell, J. in Wilson v. Morgan, 4 Rob. 58.)
    IV. Cape Town and Mauritius are dependencies of Great .Britain. The charter, therefore, in terms and in effect, entitled the defendants, upon performance by them, to four shillings and two pence sterling for each gold dollar stipulated for. This amount could be recovered by action, and it is upon it that the plaintiffs are entitled to their commission. In Wilson v. Morgan the freight was payable in the United States in gold dollars.
    V. The true rule where a debt payable abroad is sued here, is to give the creditor the full sum necessary to replace the money in the country where it ought to have been paid. Such is the doctrine established by the courts of the United States. [Grant v. Healey, 3 Sumner, 523. Smith v. Shaw, 2 Wash. C. C. R. 157, 168. Story on Confl. of Laws, § 311.) But Hendricks v. Franklin, (4 John. 119,) Martin v. Franklin, [Id. 124,) and Scofield v. Day, (20 id. 102,) are assumed .to establish a different rule here, in those cases the Supreme Court does lay down the rule to be that the parties are held to the par of exchange. Those cases, however, are at variance with the decisions of the United States courts, as has been shown; with the rule adopted by foreign jurists, (Story’s Confl. of Laws, § 309; Cash v. Kennion, 11 Ves. 314;) and with the decision of our own Court of Errors, reversing the Supreme Court, where it adhered to the rule laid down in the above cases; (Graves v. Dash, 12 John. 17;) followed by the Supreme Court in Denston v. Henderson, (13 John. 322;) and De Rham v. Grove, (18 Abb. Dr. 43.) Scofield v. Day, (20 John. 102,) was incautiously decided, without reference to or consideration of the decision of the court of errors in Graves v. Lash. In most of the above cases, the question arose in respect to bills of exchange, but they were all prior to our statute (3 R. S. 5th ed. p. 70,) fixing the rate of exchange instead of the nominal par as the true rule, so that the rule established by them has general application. In Swanson v. Cooke, (45 Barb. 574, 579,) the rate was agreed upon. Guiteman v. Davis, (Id. 576, note,) follows the rule contended for.
    VI. Since the act of February 21, 1857, there has been no legally established par of exchange for general commercial purposes. Various statutes had fixed, or continued earlier statutes, fixihg the rates at which foreign coins should be receivable in the payment of debts and demands. All such statutes were repealed by the act of February 21, 1857, (11 Stat. at Large, 163.) Section 3 of which provides: “ That all former acts authorizing the currency of foreign gold or silver coins, and declaring the same a legal tender • in payment for debts, are hereby repealed; but it shall be the duty of the director of the mint to cause assays to,be made, from time to time, of such foreign coins as may be known to our commerce, to determine their average weight, fineness and value, and to embrace in his annual report a statement of the results thereof.”

      S. P. Hash, for the defendants,
    I. A full cargo was assumed and found to be 4200 barrels, which at $1 per barrel freight, with five per cent primage, came to $4410 according to a bill rendered by the plaintiffs. On this basis, the commission of five per cent came tó $220.50, but the question is whether the commission was payable in gold, as claimed in the bill rendered, and can be recovered at its equivalent in currency, or whether the freight can be computed in paper currency by converting the total of frieght that would have been paid in gold, if earned by performance of the voyage, into paper currency, for the purpose of computing the five per cent commission on such amount. It was on the latter computation that the amount was submitted to the jury.
    1. There is not in the charter itself, nor in the testimony, any thing as to the time when, or place where, the commission was payable; but assuming that it was as alleged in the complaint, payable on the execution of the charter, then the contract was one made and to be performed in New York. The commission was five per cent, amounting, (including primage,) to $220.50. If this amount had been expressly payable in gold, still no greater than the nominal amount, as expressed in dollars, would have been recoverable. (Wilson v. Morgan, 1 Abb. N. S. 174. 4 Rob. 58. Rodes v. Bronson, 34 N. Y. Rep. 649. Murray v. Harrison, 47 Barb. 484. 45 id. 579, 618.)

      2. But there was no agreement to pay the commissions in gold. Paper currency was at the time the common money o.f account by which all transactions were governed, unless the contrary was expressed. The nominal amount of freight money which the charter secured, computed in dollars, irrespective of currency, was the true basis for computation.
    3. It was a roundabout and fallacious method which was submitted to the jury, that of computing the value in New York, in paper, of the freight that would have been payable in Cape Town or Batavia, in gold, or its equivalent, if "the voyage had been performed. This idea assumed that the defendants would have brought home the $4200 in gold, and that it would have been worth to them in New York its equivalent in paper currency. It overlooks the fact that a large portion of it would be disbursed abroad in gold or its equivalent. If the freight money had been payable, say $4200 in cotton or rice, at the port of discharge, clearly the plaintiffs would not have been entitled to estimate the value of the rice or cotton brought to Hew York. The court would say $4200 is $4200, no matter in what payable.
    4. This argument also assumes that the defendants had by virtue of the charter secured for them by the plaintiffs a good claim against the charterers, if they were in default, for $4200, payable in gold, in Hew York. This is fallacious. Probably their claim would" have been limited .by the $1000 penalty. But if not, the rule of damages would have been the value of the charter, to be ascertained by deducting from the amount the voyage would have yielded, the probable cost and expense of performing it. In this estimate it is clear but one kind of dollar would have been taken into account. (Ashburner v. Balchen, 3 Seld. 262.) .
    H. The primage was not properly added to the sum on which the commission was chargeable. The testimony that it is not usually included was not contradicted by the plaintiffs. The true computation, therefore, was five per cent on $4200, amounting to $210, with interest from the time the bill was rendered, December 31, 1864, to date of trial, October 23, 1867, two years and ten months—in all $251.65.
    HI. But the plaintiffs were not entitled to recover. Williams & Brewster, ship brokers,, began the negotiation, brought the defendants to the plaintiffs’ office, and rendered a bill claiming commissions. At least, the plaintiffs should have been restricted to half brokerage.
    IV, The case was one of hardship on the defendants. They found themselves in the hands of several brokers, each claiming commissions; there was ground for supposing that the pretended charterers, Parlow & Co. of Boston, were a myth, or Vernon H. Brown & Co. in another form, and it was certainly no case for. an extreme application of the gold question.
    . V. The verdict should be set aside, or reduced to $251.65.
   By the Court, Robertson, Ch. J.

The plaintiffs were entitled to their commissions as soon as the charter-party was executed, and were not hound to wait until it was performed. The per centage to be allowed them is to be estimated not by the ultimate actual profits of the adventure, but by what they might be, if it should prove successful. And it remains, therefore, to be determined, what that might have been, if the contemplated voyage were performed with a full cargo. The capacity of the vessel was admitted in the pleadings to have been 4200 barrels, and the rate of payment seems to have been conceded to have been that provided in the charter-party, for payment at Mauritius. It would be immaterial which-place was taken as the ultimate' destination, unless there was a difference between the value of four shillings and two pence at Mauritius, and two guilders and a half at Batavia.

The evidence showed the rate of exchange in currency, between Mauritius and Hew York, making the value of a pound sterling at the former place equivalent to about ten dollars and a half in currency here. In other words, it would require that sum paid here, to obtain a pound sterling at the former place, or that sum could be obtained here for a pound sterling there, and the defendants would be entitled to that sum in currency for every pound sterling due at Mauritius. (Graves v. Dash, 12 John. 19. Denston v. Henderson, 13 id. 322. De Rham v. Grove, 18 Abb. 43. Story’s Confl. of Laws, §§ 309, 311. Cash v. Kennion, 11 Ves. 314. Grant v. Healey, 3 Sumn. 523. Smith v. Shaw, 2 Wash. C. C. R. 167, 168. Guiteman v. Davis, 45 Barb. 576, n.) Foreign coins ceased to be part of the currency of the United States in 1857, (11 U. S. Stat. at Larye, 163,) by an act which repealed all others, which either authorized their use as currency, or declared them to be a legal tender in payment of debts. They therefore were articles of merchandize only, stripped of every characteristic of being part of the currency of the country. The Revised Statutes of this state had provided (yol. 1, p. 771, § 20) that the amount due on a dishonored bill of exchange, whose contents were “ expressed in the money of account or currency of a foreign country ” should “ be ascertained and determined by the rate of exchange, or the value of such foreign currency.”

A contract to be completed in á foreign country, the compensation for which is payable in the money of account or currency or coin of that country, is to be considered as performable there, at least so far as the place at which the value of such currency, money or coin is to be estimated is concerned, particularly as the charterers would have a lien for the freight at the place of delivery of the cargo.

I regard the designation of a dollar in gold as the price of each barrel transported by the vessel in question as being purely nominal. No such gold coin existed, except in-the United States, that I am aware of, and the parties could hardly have meant that it was intended to pay in them in a foreign port. The value of the coin or denomination of money intended is fixed by the charter-party as being equivalent to four shillings and two pence at Mauritius and two guilders and a half at Batavia. If there was any difference in the value of those two amounts, it is clear that the term “ dollar ” was not intended to express a uniform value. It is true that there are two currencies in the United States, one in gold and the other in paper; and that the former is, or was, worth nearly half as much again as the latter; but the plaintiffs could only obtain, and the defendants would be authorized to discharge their obligation by such paper or inferior currency, and therefore it is that, that in the value of such foreign coin is to be estimated. There is no reason for treating it differently from any other article of merchandise in which the charterers of the vessel had agreed to pay the charter money. ' An agreement to pay four shillings and two pence of English currency at Mauritius, or two guilders and a half at Batavia, would entitle the payees to recover their value in paper currency at New Y ork. Without reference, therefore, to what would have been the construction of the charter-party, if it had been simply for the payment of so many dollars in gold, when the principles laid down in Wilson v. Morgan, (1 Abb. N. S. 174,) Rodes v. Bronson, (34 N. Y. Rep. 649,) and Murray v. Harrison, (47 Barb. 484 ; 45 id. 579, 618,) would have been applicable. I think the plaintiffs are entitled to five percent on the value in Hew York of the amount of sterling currency susceptible of being earned at Mauritius under such instrument.

Judgment must therefore be given for the amount of the verdict, with interest.

Barbour, J., concurred.

Monell, J. (dissenting.)

This being an action to recover commissions for procuring the charter of a vessel in the port of Hew York, the commissions were payable as soon as the charter was effected, and do not depend upon freight being taken or earned, or upon the voyage being completed.

It was, therefore, a contract as between those parties to be performed here, and is undistinguishable, in my opinion, from Wilson v. Morgan, (4 Rob. 58.)

The verdict should be reduced to the amount of commissions estimated upon the freight, payable in the proper equivalent of gold; else a new trial should be ordered.

Judgment given for amount of verdict, with interest.


author: By the Court, Barbour, J.

text:
    Charles Hedges et al. plaintiffs and respondents, vs. The Hudson River Railroad Company, defendants and appellants.
    1. Although the general rule is that the liability of common carriers who have received goods for transportation, either as such or as bailees only, is continued until the actual delivery thereof to the consignee, at the place of destination; yet where actual delivery is impossible, because the consignee cannot be found, or has neglected to take the goods away within a reasonable time, the carrier may divest himself of his common law liability as such, by storing them in a warehouse, belonging either to himself or to another, for the benefit and at the charge and ordinary risk of the owner, and to be delivered to him by the storekeeper upon payment of warehouse charges, together with those of the carrier.
    So, also, where the consignee fails to take away the goods within a reasonable time after he has notice of their arrival, the carrier’s extraordinary common law risk ceases at'the end of such time, although, the goods may still remain, upon his carriage or vessel.
    By usage, too, where the same exists, goods may be deposited by the carrier at a customary place of receiving them, such as a wharf, and if the person, whose duty it is to receive them, shall fail to take them away within a reasonable time after notice thereof, the carrier will, thenceforth, be discharged of all liability.
    A common carrier cannot legally divest himself of his common law liability as such carrier in any other way, where the consignee can be found, than by an actual delivery of the goods to such consignee, or by giving notice to him, with reasonable diligence, and his failure, after the lapse of a reasonable time for that purpose, to take them away.
    The rule adopted in Massachusetts, that where it is the usage for a railroad company to deliver goods by discharging them upon their own platform, without giving notice to the consignee or owner, the persons sending goods by them must be presumed to have assented to such usage, does not prevail in this state.
    A different rule does not obtain, here, in regard to railroad companies, from that which controls aU other common carriers, whether by land or water. Where goods, transported by railroad, after reaching their place of destinanation, are before delivery to the consignees, and while yet remaining in the freight car, destroyed by fire—the consignees using due diligence in regard to taking them away—the carriers are liable.
    (Before Barbour, Garvin and Jones, JJ.)
    Heard March —, 1868;
    decided March 12, 1868.
    This action was brought by the consignee of some 2000 reams of paper, received by the defendants as common carriers for transportation to New York by their railroad, to recover damages, because of their failure to deliver 1550 reams thereof; the same having been burned in the depot yard of the defendants while yet remaining in the car, by a fire of incendiary origin.
    Hpon the arrival of the train containing the paper, the defendants sent a written notice to the plaintiffs, informing them that such. paper had arrived, and also stating that unless it was taken away without delay, it would be stored at the expense of the owner or consignee. Immediately on receiving such notice, the plaintiffs sent up a truck and removed one load of 500 reams on the same day; and the jury found, that question having been submitted to them by the court, that the plaintiff used due diligence in regard to taking the paper away.
    The action was tried before Justice Garvin and a jury. At the close of the testimony, the counsel for the defendants .moved for a nonsuit and dismissal of the complaint, upon the grounds that it appeared from the evidence:
    1st. That the defendants delivered, and the plaintiffs accepted and assumed control of the paper for the loss of which this action is brought.
    2d. That the liability of the defendants as common carriers had ceased, and that the paper was destroyed without any negligence or default on their part.
    3d. That there was reasonable time and opportunity after the arrival of the paper, and before its destruction, for the plaintiffs to have removed the same.
    4th. That the plaintiffs had reasonable time' and opportunity, after notice of the arrival of the paper, and before its destruction, to have removed the same.
    5th. That the plaintiffs failed to exercise proper diligence in learning of the arrival of the paper, and in removing it after notice.
    The court denied the motion; to which decision the counsel for the defendants excepted.
    The justice charged the jury, among other things, that the plaintiffs had a right to take a reasonable time to take the goods away, and the jury were to say whether they prosecuted the business with common and ordinary diligence ; that if they had proper time to .get away another load, or two loads of the paper, and did not do it, then the jury were to deduct from the whole quantity 500 reams for each load, and give such a verdict as under the rule of law and circumstances they would be justified in giving. ,

      The jury found a verdict for the plaintiffs, and assessed their damages at $984.20.
    A motion was thereupon made by the defendants, upon the minutes of the judge, to set aside the verdict, and grant a new trial, upon the exceptions taken and upon the grounds that the damages were excessive; that the evidence was insufficient to sustain the- verdict, and that the verdict was against the evidence; which motion was denied, and the defendants appealed from such decision and from the judgment.

      F. Loomis, for the appellants, defendants.
    I. The liability of the defendants, as common carriers, terminated with the arrival of the paper at its place of destination and there being had in a position for the consignees to take it away, and upon the paper being placed in such position the liability of the defendants changed and became that of warehousemen. (See Angell on Carriers, § 302; 2 Kent’s Com. 604.) 1. If it be urged on the part of the respondents that the onerous liability of the defendants as carriers continued until the expiration of reasonable time for them to get the paper away after notice of its arrival, the cases in this state that may be cited in support of this doctrine, are all of carriers by water, who claimed that by the delivery of the property on the public dock, or upon a float to be in a position for delivery to the connecting carrier, they had discharged their liability as carriers. Such are Price v. Powell, (3 Comst. 322;) Miller v. Steam Navigation Co., (10 N. Y. Rep. 431.) But it is submitted that railroad companies are a different class of carriers, with, to some extent, different liabilities, and that no case in this state can be found upholding as against them the liability insisted on by the respondents. In Massachusetts this difference has been recognized by the highest tribunal. (Thomas v. Boston and Prov. R. R. Co., 10 Metc. 472. Murray Plains Co. v. Boston and Maine R. R. Co., 1 Gray, 263.) And it has been further held that the delivery may be, in the case of railroad carriers, in the car. (Lewis v. Western R. R. Co., 11 Metc. 509.) 2. The storage and keeping of the goods may he, as in this case, in the car or vehicle in which they arrive, particularly if it is with the assent or at the request of the consignee or consignor. (Ide v. Sadler, 18 Barb. 32. Labar v. Taber, 35 id. 305.)
    It. Granting that the plaintiffs were not bound to make inquiry for the paper after notice of its shipment, and might await notice from the defendants, the giving of such notice and a readiness to deliver upon demand and payment of freight, was a termination of the defendants’ liability as common carriers. (Fish v. Newton, 1 Denio, 45, per Jewett, J. Goold v. Chapin, 20 N. Y. Rep. 259.) 1. In this case, the notice to the plaintiffs of the arrival of the goods and that they must be taken away without delay, was such an indication on the part of the defendants, and coupled with their readiness to deliver the property, during the day of the receipt of the notice, terminated the defendants’ liability as common carriers. 2. The subsequent destruction of the goods by fire, did not make the defendants liable therefor, granting that the plaintiffs had not had full opportunity to remove them. (Northrup v. Syracuse and B. R. R. Co., Court of Appeals, March 7, reported in N. Y. Transcript, March 4, 1868.)
    • III. The defendants delivered and the plaintiffs received the paper, and the leaving of the 1550 reams in the car was with the assent and for the convenience of the plaintiffs, and made the defendants gratuitous depositaries in respect thereto. 1. A witness for the plaintiffs testified that he presented the notice to the defendants’ agent, paid the freight bill and told him that he “ wanted the paper in that car that the car was opened for him in an accessible place, and he proceeded to take possession of the paper. The defendants had nothing further to do with it as common carriers, they had no lien on it for freight, and the delivery was complete. 2. It was a renunciation of the character of carriers. (Goold v. Chapin, Labar v. Taber, and Lewis v. Western Railroad Co., ubi supra. 1 Parsons on Contracts, 673.)

      IV. The plaintiffs, to suit their necessities or convenience, could not prolong the liability of the defendants as common carriers. In this case it was to suit the convenience óf the plaintiffs that the 1550 reams were left in the defendants’ car. The plaintiffs’ witness (Raymond) swore that he was directed to go up and bring down a load of the paper. The plaintiffs knew how much he could bring in one load and how much paper there was, and evidently contemplated leaving the balance for some more convenient season, as they neither sent this "carman back for more, nor attempted to hire other trucks, when they could be hired in any- part of the city". (See Moses v. Boston and Maine Railroad Co., 32 New Hamp. Rep. 523, 540; Clendaniel v. Tuckerman, 17 Barb. 184.)
    V. The 1550 reams being destroyed while in the defendants’ possession, as gratuitous bailees, they are not liable except for gross neglect, and there is no evidence in the ease to establish that.
    VI. The verdict of the jury was clearly against the weight of evidence and should be set aside, and the order denying the defendants’ motion for a new trial should be reversed; the defendants’ exceptions were well taken and should be sustained.

      Philip Jordan; for the respondents, plaintiffs.
    I. The defendants’ responsibility never ceased. The property was not delivered, nor did the plaintiffs accept and assume control of the paper, by reason of their paying the freight and charges; because they are in all cases obliged, by the rules of the defendants, to pay before they can get access to their goods at all. There was in fact no delivery of the goods by the defendants at any time, because the goods were never unloaded, but were still in the car when destroyed by fire.
    II. Even if the defendants’ liability as common carriers had ceased, the goods were still stored by them, and destroyed through their neglect. The testimony of the. defendants’ witness Moran, showed that there was only one watchman beside himself for the whole freight depot; that there was no water or any materials provided by the defendants for extinguishing fire; that people were often smoking there; and that when he discovered this fire it only covered a surface of three or four feet.
    IH. Three witnesses for the plaintiffs testified that one load of the paper reached the plaintiffs’ store by two and a half p. M. on the same day upon which the plaintiffs received notice. Two of them who drove the truck and loaded the paper, of their own personal knowledge say, that they could not have gone back to the depot and brought another load in time to unload before the usual time of the closing of the plaintiffs’ store, (six p. m.) The defendants produced several witnesses, (all in their interest and employ,) to disprove the plaintiffs’ evidence; • but their testimony was only general, none of them knowing the special circumstances of the case. Two of them, (Manning and Ackert,) say, that it would have taken them from ten A. m. to six p. M. to get away two loads of the paper; one, (Manning,) also says that he don’t think he could have got there or got away any quicker than the plaintiffs’ cartman, (Raymond,) did under the circumstances surrounding him at the time. They, therefore, sustain the plaintiffs’ evidence.
    IV. The plaintiffs were not bound to ascertain when the paper arrived in Hew York. It is the custom of the railroad companies in Hew York to send notice to consignees when goods arrive. The defendants have printed blanks for doing so in all cases. One witness, (Kane,) also testified to the custom of the defendants and other companies, and that he had received similar notices from the defendants.
    V. The damages were not excessive, because the verdict was for the value of the paper in the car destroyed, of which the price was not disputed. The plaintiffs’ evidence was direct, and amply sufficient to sustain the verdict; and the verdict was not against evidence, because there was no direct and positive evidence produced by the defendants against that of the plaintiffs.
   By the Court, Barbour, J.

The general rule is that the liability of common carriers who have received goods for transportation is continued until the actual delivery thereof to the consignee at the place of destination. Where actual delivery is impossible, however, because the consignee cannot be found, or because of his neglect to take the goods away within a reasonable time, the carrier may divest himself of his common law liability by placing them in a warehouse belonging either to himself or to another, to be there stored for the.benefit and at the charge and ordinary risk of the owner, and to be delivered to him by the storekeeper upon payment of warehouse charges, together with those of the carrier. So, also, where the consignee fails to take away the goods within a reasonable time after he has notice of their arrival, the carrier’s extraordinary common law risk ceases at the end of such time, although the goods may still remain upon his carriage or vessel. By usage, too, where the same exists, goods may be deposited by the carrier at a customary place, such as a wharf, and if the person, whose duty it is to receive them, shall fail to' take them away within a reasonable time after notice thereof, the carrier will, thenceforth, be discharged of his liability. (2 Kent’s Com. 597-608. Story on Cont. §§ 467-473. Chitty on Cont. 483, and eases cited by those writers.)

I am satisfied from a careful examination of the authorities and cases bearing upon the subject, that a common carrier cannot legally divest himself of his common law liability as such carrier in any other way, where the consignee may be found, t ian, b_y am, actual delivery' of the goods to such consignee or~by giving notice to him, if he can be found with reasonable diligence, and his failure, after the lapse of a reasonable time for that purpose, to take them away.

It is true, the Supreme Court of Massachusetts has held, in the case of Thomas v. The Boston and Providence R. R. Co., (10 Metc. 472,) that where it is the usage of a railroad company to deliver'goods by discharging them upon their own platform, without giving notice to the consignee or owner, the persons sending goods by them must be presumed to have assented to such usage; thus, as it seems to me, deciding that railroad companies, in that state, may make laws,-not only for their own government, but for that of the persons sending goods by them. Similar decisions may be found in Norway R. Co. v. B. and M. R. R. Co., (1 Gray, 263,) and McCarty v. N. Y. and Erie R. R. Co., (30 Penn. Rep. 247.) The same question, however, has been adversely decided in Moses v. B. and M. R. R. Co., (32 N. H. Rep. 523,) and in M. Cent. R. R. Co. v. Ward, (2 Mich. Rep. 538.) In this state, no such doctrine has ever been promulged by any of our courts; nor am I able to perceive why a different rule should obtain in regard to railroad companies from that which controls all other common carriers, whether by land or water.

Of course, if I am right in the opinion above expressed, it is unnecessary to consider whether the notice given to the plaintiffs, that the goods would be placed in store at their charge, unless taken away without delay, was, or was not, a waiver of the defendants’ right to require the - consignee to remove them within what might otherwise be considered a reasonable time, as well as the assumption of an obligation on their part to hold the goods as common carriers until they should be removed within a reasonable time, or to properly place the same in store, in case they should not be taken away by the consignee.

The direction, in this case, of the learned judge, touching the liability of the defendants in case the plaintiffs should be found to have exercised due diligence in regard to taking their goods away, was,’therefore, strictly proper; and the verdict of the jury was fully justified by the evidence. It follows that the judgment should be affirmed, with costs.