text:
    John F. Walter v. Jehial T. J. Post.
    Upon the trial of an action to recover the damages alleged to. have been sustained by the plaintiff from certain wrongful acts of the defendant, although no express agreement or consent of the parlies to the commission of the acts be proved, the jury has the right to infer the existence of such an agreement or consent from the acts of the parties and other circumstances.
    So where it is proved to the satisfaction of the jury that the plaintiff actually consented to the acts for which, as trespasses, he claims damages, he ought not to be allowed to recover.
    And a consent operates as a license, and a license is, in all cases, a justification of a trespass. "
    As a license is not required to be in writing, it may, in all cases, be proved by parol, either by showing its express words, or by proof of facts and circumstances from which the jury may infer its existence.

      Held, therefore, that the Judge erred, upon the trial of this cause, in refusing to instruct the jury as requested, “ that it was not necessary for the defendant to prove an express consent of the' plaintiff for him (the defendant) to take down and remove the old division-wall, but that his consent might be.inferred from his acts, and that if the jury believed that he did consent to these acts of the defendant, he cannot recover any damages therefor,” and that the Judge also erred in charging the jury that, “ unless the defendant had proved a clear and express consent on the part of the plaintiff that the defendant might remove the wall, he was not precluded from recovering any damages resulting to him therefrom.”

      Held, also, that the further instruction given by the Judge to the jury, “that if the plaintiff merely submitted to the taking down of the wall from an erroneous opinion that the defendant had a right to remove it, his submission would be no bar to the action,” if not clearly erroneous, was calculated to mislead the jury. There are many cases in which such a submission to the acts of a person who is acting not wilfully, but is doing what he believes he has a right to do, would be justly construed as an acquiescence that would preclude the plaintiff from asserting his own ignorance of his legal rights to the prejudice ef a defendant equally ignorant, and relying in good faith upon the silent submission of the plaintiff as sanctioning his acts.
    In such cases it may be justly held, that the submission of the plaintiff operates as a license, the validity of which he is estopped from denying.
    In an action to recover damages for the injuries to the business of the plaintiff from a wrongful act of the defendant, the loss of profits, if a direct consequence of the wrong, may be included in an estimate of the damages that the plaintiff is entitled to recover.
    Hew trial ordered; costs to abide event.
    (Before Duer, Bosworth and Woodruff, J.J.)
    December 8, 1856;
    February 28, 1857.
    Appeal by defendant from a judgment for the plaintiff upon a verdict in his favor.
    The action was brought to recover the damages that the plaintiff alleged he had sustained from certain wrongful acts of the defendant. . The principal defence was, that the plaintiff had consented to the acts of which he complained.
    The cause was tried before Bosworth, J., and a jury.
    The nature and grounds of the action and of the defence sufficiently appear in the following statement of the pleadings:
    The complaint alleges that the plaintiff is the lessee of a house and premises in the city of New York, for the term of eight years from the 1st day of May, A. D., 1852, and that since this date he has used and occupied, and still uses and occupies the first floor as a merchant tailor’s store, and that he also used and occupied during the same period the yard and rear part of the said premises, and has hired and rented the basement to other persons who used and occupied them for various purposes. .
    It then alleged, that on or about the 15th of June, 1854, the defendant, by himself and his agents, workmen, etc., etc., broke down and destroyed the southerly wall of the building, inserted beams into the house, and dug up the earth in the yard and carried away portions thereof, and built a wall upon the premises; entered the wall of the house and into the basement, and did various other injuries which it is unnecessary here to state in detail, and did thereby greatly obstruct the ingress and egress of the plaintiff’s customers, and did prevent many customers from entering, and did compel the plaintiff to abandon his residence in the said house, and subjected him to various and heavy expenses, and continued in the commission of the said trespasses for three months, from, etc., etc.
    That the plaintiff had been thereby deprived of the use of his house, etc., for the period of three months, and had lost and been deprived of sums of money due for the rent of divers portions of the premises, and the goods, etc., were much injured by dust and exposure; the plaintiff’s trade was injured, his profits diminished, etc., etc., to his damage $5000.
    The answer of the defendant sets up title in the adjoining lot; the defendant’s arrangements and contracts for building thereon ; the discovery, on the removal of the defendant’s old building, that the foundation wall was one half upon each lot, so that below the surface it supported the walls of both buildings; that, on notice to the plaintiff, and a proposal by the defendant that he would remove the old wall and erect a new wall upon the lot occupied by the plaintiff sufficient to support the plaintiff’s building, and would also restore the basement of the plaintiffs house to its original condition within a reasonable time, and in the mean time would shore up and sustain the plaintiff’s said building, the plaintiff expressed his satisfaction, and desired that the same be done as soon as practicable. It then averred the careful and proper performance of the work at large expense, and claims that as it was done at the plaintiff’s request, when, (as averred) it was his duty to do the same himself, he was justly indebted to the defendant therefor. In relation to the excavation of the yard, the answer averred notice to the plaintiff, and claimed that it was his duty to support the earth and prevent its falling into the excavation there made on the defendant’s lot only; his neglect to do so; that the earth in consequence fell in and upon the defendant’s lot, to his damage, etc. That as to the basement, the injury, if any, was to the tenants, and not to the plaintiff.
    The answer denied other allegations.
    To so much of the answer as alleged any request by the plaintiff, and to all that >js alleged as a ground of any counter-claim, the plaintiff replied Icy a general denial.
    There were other allegations in the pleadings, but enough is here stated to make the questions raised on the appeal intelligible.
    To various rulings on the trial, exception was taken by the defendant, which are sufficiently explained in the opinion of the coyrt.

      JG. J. Phelps, for the appellant.

      Jas. W. Gerard, for the respondent.
   By the Court. Woodruff, J.

On the trial of this cause the plaintiff called a -witness, and examined him respecting the description of the building occupied by the plaintiff, its interior arrangements, its condition, occupation, and manner of' use at, and immediately prior to, the time when the work complained of was begun by the defendant, and the witness proceeded to describe particularly the excavation made by the defendant, the introduction of the beams into the basement of the premises, when they were put in, and how long certain of the alleged grievances continued, and was proceeding to state how many beams were im serted, their height and position, etc., when the defendant’s counsel objected to any evidence as to damages to the basement, as it appeared that they were under-let, and his objection being overruled, he excepted.

We think there was in this ruling no error. Had the testimony tended to no purpose but to show what damage the tenants had sustained, the objection would have been well taken, but the testimony was a part of the history of the defendant’s acts tending to the injury of the entire building—it was a part of the res gestae —it would have been an imperfect and unfair statement of the transactions to state that the defendant removed the foundation wall without at the same time stating what he did to sustain the wall above, and how he did it. Its imperfections or its only partial adequacy might be the very subjects for the consideration of the jury; and although the effect of what was done, upon the plaintiff and his business, was the ultimate end and object of the investigation, these details, we think, clearly relevant and proper.

Besides, although the basement was let to other tenants, the plaintiff himself occupied the rear building, and there was a basement hall at the side of the building, across which the beams were inserted, and it appeared that this hall was used as well as the hall on the first story, for access to the rear building, and for various other purposes, by the plaintiff himself and his family. Its obstruction was, therefore, an immediate injury to the plaintiff, proper to be considered by the jury; and a stair-case was shown to have been removed, which led from that basement hall to the first story, which the plaintiff occupied as a store.

If there was any evidence given subsequently, which tended to show the damages which were sustained exclusively by the tenants, no objection was made, and the attention of the court was in nowise called to it. The general objection above stated cannot, we think, be sustained.

In the course of the examination of another witness, another general objection was stated by the defendant’s counsel, which appears in the case thus: “ The defendant’s counsel objected to testimony as to the general injury to the walls and building,” which objection was overruled and exception taken.

To what question this objection was addressed does not appear. The testimony of the witness which follows immediately after such ruling is this: “ The water was running down the wall, and tubs were set on the floor to catch the water.” The witness was describing the condition of the building after the alleged trespass.

This exception was not urged on the argument of the appeal, and we do not discover any thing in it which requires extended discussion. If we regard the form of the objection it was clearly untenable, the general injury to the walls and building, in connection with the effect of the injury upon the plaintiff and his business, were (if the plaintiff’s acts were shown to be wrongful) the very subject of inquiry; whether and to what extent the plaintiff should be allowed for cost of repairing the injury was another and distinct question.

What the defendant meant by “general injury” is not very apparent. If he intended by that, that the plaintiff’s counsel should point his questions, or the witness address his answers to a distinct specification of each particular place and particular wherein the premises were injured and their occupation rendered less valuable to. the plaintiff, this is not sufficiently indicated by the objection.

If he meant that the injury to the walls and building could not be considered by the jury in determining how far the occupation of the plaintiff was interfered with and rendered less valuable, it was clearly untenable. We might, perhaps, say that the objection was too vague and indefinite, and was properly overruled on that ground; but we do not perceive how, in any aspect, the objection could be sustained.

Some other exceptions were taken to the admission of evidence, and an exception also to the refusal of the Judge to order a dismissal of the complaint, but they were not urged on the argument of the appeal, nor referred to in the points which he submitted, and we may dismiss them with the remark that we concur with the defendant’s counsel in the opinion that they furnish no ground for a reversal of the judgment.

It is stated in the case made for the purposes of the appeal, among other requests made by the counsel for specific instructions to be given by the court in the charge to the jury, that the defendant’s counsel requested the Judge to charge:

“ That it was not necessary for the defendant to prove the express consent of the plaintiff for him, the defendant, to take down and remove the old division wall, but that the plaintiff’s consent might be inferred from his acts; and if the jury believed, from the evidence, that the plaintiff did consent to the taking down and removal, etc., of the wall by the defendant, he cannot recover any damages therefor;” and the case adds: “But his honor declined so to charge, and instead thereof charged the jury, that unless the defendant had proved a clear and express consent on the part of the plaintiff that the defendant might remove the wall, the plaintiff was not precluded from recovering in this action any damages resulting to him therefrom.”

To this is also added, “that merely submitting to its being taken down, without attempting to prevent it, from an erroneous opinion that the defendant had a right to remove it, would be no bar to this action. If there was a clear and express consent that it might be pulled down, there can be no recovery in this action, but unless such a consent was given, the plaintiff is entitled to recover.”

To the refusal above stated, and to this part of the charge given (as stated) “ instead thereof the defendant’s counsel excepted.”

A slight modification of this part of the charge appears in a subsequent portion thereof, in which the Judge appears to have said, “If the jury believe that it was clearly and distinctly agreed between the plaintiff and defendant that the defendant migüt remove the wall and insert his needles, and that l^e should restore the building to a proper condition, there can be no recovery in this action.” And again, it is added, “but if each party supposed that the defendant had a legal right to remove the wall and insert his needles, and the plaintiff did no more than submit to what he at the time supposed he could not prevept, and had no right to object to, that is not such an assent as bars his right to recover."

The claim set up in the defendant’s answer, and the purpose and tendency of much the greater portion of the testimony given in his behalf, was to show that the plaintiff not only acquiesced in what was done without objection, but that there was a mutual understanding between him and the defendant, amounting to an agreement, that the defendant might remove the wall, and rebuild it, aqd restore the plaintiff’s building to the condition in which it was before the work was commenced.

The acts of both parties were relied upon, (in the absence of the testimony of any witness who heard any express agreement,) as tending to show that such an agreement existed, and it was insisted, that enough wa&proved to warrant the jury in finding that, in truth, the plaintiff gave a sufficient license to justify the defendant in removing the wall, and sustaining the building by beams or needles in the manner he did.

Was there nothing in the charge on this subject other than the instruction' above recited, that “if the jury believed that it Was clearly and distinctly agreed,” etc., it might, perhaps, be regarded as a submission to the jury of all the facts and circumstances disclosed by the evidence, including all the acts of the parties, with the absence of any objection by the defendant, and as leaving to them to say whether an agreement existed, and if an agreement was necessary to the defendant’s protection in the sense in which it was used in the charge; the addition that they must also find that it was a clear and distinct agreement would not be material. It does not occur to us that, in reference to a single point under discussion, any thing but a clear and distinct agreement can properly be called any agreement.

But, although this latter portion, of the charge, as well as the whole current of the evidence received from the defendant on the trial, seems to us to indicate that the Judge rightly appreciated the rule which, undoubtedly, permits the jury to infer the existence of an agreement or consent from the acts of the parties, or' other circumstances, though no witness is introduced who can testify in terms to an express agreement or consent, yet the refusal to charge that it was not necessary for the defendant to prove an express consent, but that such consent might be inferred from his acts, remains in the case not only unexplained and unqualified, but is followed by the instruction, that unless a clear and express consent was proved, the plaintiff is not precluded, etc.

We all concur in saying, that if the jury should find, from the evidence, that the plaintiff actually consented to the acts of which he now complains as a trespass upon his premises, he is not entitled to recover from the defendant. A license is always a sufficient justification of a trespass, and the books are full of pleadings and precedents in which it is treated as a complete defence. And we are equally clear, that a license, not being required to be in writing, it may be proved like any other similar fact, by showing express words of license, or by proof of the acts of the parties, and other circumstances, from which the jury may infer that the plain-: tiff consented to the alleged trespasses.

We also think that the further instruction above recited, that merely submitting to the taking down of the wall from an erroneous opinion that the defendant had a right to remove it, would be no bar to the action, which was somewhat more explicitly repeated) as not warranting the inference that the plaintiff assented to what was done, if each party supposed the defendant had a legal right to do what he did, if not clearly erroneous, was calculated to mislead the jury.

There may, undoubtedly, be a submission to a wrong, done under the assertion of a right, and in spite of the plaintiff’s dissatisfaction, a silence where remonstrance is seen to be futile, which could in nowise be regarded as either license or.assent. But, on the other hand, a standing by, without objection, when a trespass is committed by one who is at the time acting, not wilfully, but in the belief that he is doing what he has' a right to do, may, and often will, in legal effect, operate as a license. It is such an acquiescence as estops a party afterwards to complain of the trespass, when the other party acts in known reliance thereon. This subject is noticed in the opinion of this court in the case of Miller v. Davis, at the February General Term, 1856.

A license may be given and proved by parol, and it may not only be inferred from the acts of the parties, in connection with the silent acquiescence of the plaintiff, but such acquiescence may enure as a license by estoppel when the other requisites to create an estoppel in pais concur, and we are not aware that in either case the ignorance of the plaintiff of his legal rights can alter the effect or prejudice the defendant.

We might dispose of this appeal without examining the other questions discussed on the argument; but it may be important for the purposes of the new trial, which must be ordered, that they should be disposed of.

The defendant requested the Judge to charge that the plaintiff could not recover for injuries to the freehold, because there is no allegation in the complaint that he (the plaintiff) is responsible to the owner of the freehold for injuries to the premises committed during the continuance of the plaintiff’s term; and the case states that his honor declined so to charge, or otherwise in respect thereto than is contained in the charge actually given, viz., “with respect to injuries to the building itself, the plaintiff is entitled to recover what it would cost to put it in a suitable position for the Use before made of it.....That the plaintiff would be entitled to recover sufficient to put the building in as good condition as when he hired it, natural-wear and tear excepted.”

The want of harmony between these two propositions suggests the doubt, whether, in making up the case, some mistake has not occurred which was not corrected in the settlement, and this doubt is strengthened by another statement in the case, which, if true, would show that the plaintiff’s lease, with the covenants therein, was not given in evidence at all on the trial, and that the covenants therein, which, it is claimed, made it the duty of the plaintiff to repair, were not even offered in evidence by the plaintiff. The plaintiff had been in the occupation of the premises for more than two years when the alleged trespasses were committed. We cannot think that the plaintiff’s counsel claimed, or the Judge intended to be understood, that, under any view of the plaintiff’s duty to his landlord, he could recover for any thing more than the injury done to the building by the defendant. In respect to this item, all that he could ask was an amount sufficient to put the building in as good a condition as it was before the trespass was committed; the defendant was not bound to answer for injuries sustained in any manner, whether by natural wear, or otherwise, during the previous two years.

In regard, however, to the question raised by the defendant’s request, we apprehend there is no doubt about the true rule. As tenant for a term of years, the plaintiff had a right to be compensated for all the injury done to his possession, and in ascertaining this, the expense necessary to restore the building to such a state as would make that possession as beneficial for the purposes of the tenant as it was before the trespass was committed, should be allowed ; but with this limitation, that such allowance should not exceed the value of the plaintiff’s term, including the rent he was bound to pay. The limitation stated is necessary, for if the defendant had torn down the entire building, or otherwise driven the plaintiff therefrom, he could (apart from the question whether exemplary damages should be allowed) only recover the value of that possession of which he was deprived.

Had it appeared, however, that by the terms of the tenancy, the plaintiff was bound to make repairs, and restore the premises to the landlord at the end of the term in as good condition as when they were leased, then the defendant was liable to make good all the injury caused by the trespass, and enable the plaintiff to put the building in as good condition as it was when the trespass was committed.

We incline to the opinion that the allegations in the complaint are sufficient to entitle the plaintiff to show that such were the terms of his lease, and claim damages accordingly, and that the question appertains to the measure of damages; and yet the question is not free from doubt. There is not only no averment that the plaintiff was bound to repair, but it is not even stated that he was put to any expense in repairing, or that he made any repairs. The doubt, if any there be, on the sufficiency of the complaint in this respect, can easily be removed by amendment, which would, probably, have been allowed on the trial, had it been sought by the plaintiff’s counsel. He may, perhaps, be advised to seek such amendment before another trial.

The defendant insisted on the trial that the plaintiff could not recover for damages sustained by loss of business, because he had given no evidence of any such loss; and the counsel, on the argument of the appeal, add, as a further reason, that such damages, if sustained, are too remote to be the subject of recovery. '

We have had occasion recently to consider this latter proposition in the case of St. John v. The Mayor, argued at the December General Term, and decided at the present term, (ante, p. 315,) in which we hold, that in actions to recover against a tort feasor, the. loss of profits may be taken into view in estimating the damages, though in actions for a breach of contract the general rule is otherwise. (See Finch v. Brown, 13 Wend. 601; Fitch v. Livingston, 4 Sandf. 514; Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281; Iverson v. Moore, 1 Ld. Ray. 486; Lacour v. The Mayor, 3 Duer, 406.) This does not necessarily embrace a right to recover purely contingent or speculative profits, but will warrant the recovery for such losses as are proved to be the direct consequence of the wrong which is to be redressed.

The proof on the subject given by the plaintiff on the trial was at most exceedingly slight; the only testimony we find in the case as settled, that appears to bear upon this claim, is that of a witness who testifies that he “ had nothing else to do but keep brushing and dusting goods all the time; we had cloths, silk velvets, and all kinds; the wall was left open about three months. I (he) remained there nights and watched; the front door had two beams in it, etc.; the light goods were injured and spotted with dust.”

"We do not think that, in an action in which the damages are not fixed and certain, and upon proofs such as were given, the whole question of injury to the plaintiff’s business should have been withdrawn from their consideration. But it was proper to instruct them that the plaintiff could not recover for any loss resulting from the interruption of his business, without proof that his business was interrupted; nor for any loss in his business,

without proof of such loss; nor for any greater loss than was proved. We think the language of the charge was substantially to that effect, though we are free to say that, beyond some evidence of injury to the goods, and of increased expense or trouble in taking care of them, no such loss was shown.

It only remains to notice what was 'said by the Judge, in relation to sheath-piling, and in the refusal to charge that the plaintiff was not bound to sheath-pile and support the premises and soil of the plaintiff. Although one who excavates his own soil is not under an affirmative duty to protect his neighbor’s soil from.falling, he may not conduct his excavation so heedlessly" or recklessly as to unnecessarily cause injury to his neighbor, (Radcliff's Executors v. The Mayor, etc., 4 Comstock, 195-203,) and, on the other hand, the neighbor, having received due notice, should, if he desire to support his own soil, resort to the proper means of doing so. He may not be liable, and, we think, is not himself liable, if he chooses to neglect this precaution. The one who digs away his own soil and so, by the operation of the laws of nature, merely draws upon himself his neighbor’s soil or sand, must, we think, submit to the inconvenience, and he has, we think, his election to do so, or to protect himself by sheath-piling or otherwise, as he may be advised.

The judgment must be reversed, and a new trial ordered, costs to abide the event.


source: Caselaw Access Project

author: By the Court. Woodruff, J.

license: Public Domain

text:
    Clinton W. Conger, and others v. The Hudson River Railroad Company.
    The undertaking and duty of a common carrier are not only to carry and deliver safely the goods intrusted to him, but also to carry and deliver them within a reasonable time, but-the first duty is absolute, the second merely relative.
    What is a reasonable time depends, in each case, when the question arises, upon., its particular circumstances, and is usually, if not always, a question of fact for the determination of a jury'.
    When it appears that a delay beyond the ordinary time was not occasioned by any negligence, fault, or want of skill of the carrier, but was imputable solely to the recklessness or carelessness of a third party, the law regards it as an inevitable accident, for the consequences of which the carrier is not responsible.
    The Judge, upon the trial, charged the jury that the defendants were responsible for the damages caused by a delay in the delivery of cattle belonging to the pliantiffs, even if a collision, which produced the delay, was imputable solely to another railroad company; and he refused to charge, as requested by the defendants counsel, that if the collision was caused by the carelessness of the other company, without any negligence or fault whatever on the part of the defendants, they were not responsible for any damages sustained by the plaintiffs.

      Held, that the Judge erred in his charge, and that he ought to have submitted to the jury the question whether the collision was not solely caused by the negligence of the Hudson and Berkshire Railroad Company, as evidence had been given tending to show that such was the fact.
    It seems that the defendants, if liable at all, were not so for the shrinkage of the defendants’ cattle; their disposition to become restive, and their trampling upon each other as injuries from these causes, must be deemed to have arisen from the nature and inherent character of the property carried.
    It seems, also, that damages resulting from the loss of a market, occasioned by a delay not excused; as too speculative and contingent, are not recoverable.
    New trial ordered, costs to abide event.
    (Before Duer, Bosworth and Woodruff, J.J.)
    December 4, 1856 ;
    February 20, 1857.
    Motion, on the part of the plaintiffs, for judgment on a verdict in their favor, the questions of law arising on the trial having been directed to be heard, in the first instance, at the General Term.

      C The action was brought to recover damages from the defendants, as common carriers, for their delay in the transportation, upon their railroad, of cattle belonging to the plaintiffs, from Albany to Hew York. \

      The answer denied all the material allegations in the complaint.
    The cause was tried before Campbell, J., and a jury, in November, 1854, 'and the following are the material facts proved upon the trial.

      ( The cattle were received at Albany in the afternoon of the 29th of March, 1854, and would, according to the usual and ordinary course of transportation on the defendants’ road, have arrived in New York early on the following morning, (Thursday,) that being what the witnesses call market day; but, by reason of delay, they did not arrive until the evening of that day. From the length of the time consumed in the transportation, the cattle, which were enclosed in cars, became weary; some lay down, and were trampled upon by others, and on their delivery in New York were found bruised and shrunken, and deteriorated in respect to their condition for market. They were sold by the plaintiffs on the following Monday, the next regular market-day, but between the Thursday -and Monday the price of cattle in the market fell, according to the testimony, $1.50 per cwt.
    The plaintiffs claimed to recover for the damages sustained from the injuries to and the shrinkage of the cattle, and also damages for the loss of the market on Thursday, on the morning of which day, as they claim the cattle should have been delivered in New York.
    The defendants sought to excuse the delay by showing that it happened without their fault.)
    The cause of delay was this: One of the defendants’ passenger trains left Albany shortly before the freight train by which the plaintiffs’ cattle were forwarded; when it reached Hudson it was run into by a train, or engine, of another (the Hudson and Berkshire,) railroad company, and, by the collision, both engines and some other cars were thrown off the track, and the further progress of the passenger train was hindered for several hours.
    This detention caused delay to the trains going up, for the passage of which the rules of the road required the conductor of the cattle train to wait at a station above Hudson. Evidence was given upon the question whether the collision resulted solely from the negligence of the Hudson and Berkshire Railroad Company.
    The defendant’s counsel, on the trial, requested the Judge to charge, that if the collision was the result of the carelessness of the Hudson and Berkshire Railroad Company, and that the defendants were not guilty of carelessness or negligence, the defendants are not responsible for any damages sustained by the delay in delivering the property; and to the refusal of the Judge to so instruct the jury the defendants excepted.
    The Judge charged that common carriers are responsible foP damages to personal property, whilst in their care, which may be ultimately delivered, whether such injury was occasioned by the carelessness or negligence of the carriers or not. That, in this case, the delay which caused the damage arose out of a collision between a train of the defendants and a train of the Hudson and Berkshire Railroad Company, and that the defendants were responsible for the damages sustained in this case, although that collision was caused by the negligence of the Hudson and Berk-j shire Road alone.
    To these portions of the charge the defendants excepted. z
    By direction of the Judge the jury, on finding for the plaintiffs, stated their assessment of damages severally in two items, viz.: For injury to the cattle and shrinkage, $260; and for loss of a market day, $520.
    The case was, therefore, ordered to be heard at the General Term, upon the questions of law raised upon the trial.

      W. Hullerton, for the defendants.
    I. We contend that the accident which caused the delay from which the damage arose in this case, was not the result of defendant’s negligence and that,
    II. Common carriers are not liable for damages for mere delay in the delivery of property entrusted to their charge, if such delay arose from causes which they could not control. (Parsons v. Hardy, 14 Wend. 215; Bowman v. Teal, 23 Wend. 306; Lager v. The Portsmouth R. R. Co. 1 American R. R. Cases, 171 and note.) The Judge’s charge was, therefore, erroneous, and we are entitled to a new trial.
    IH. The special contract in this case limited the liability of defendants, and they are not responsible in this case. (Lager v. Portsmouth R. R. Co. 1 American R. R. Cases, 171.)

      IV. The charge of the court, therefore, was incorrect. The Judge should have charged as requested.

      P. G. Clark, for the plaintiffs.
    We insist that the Judge correctly charged the jury, that the defendants were responsible for damages to the plaintiff’s property, whether it was occasioned by the defendants’ carelessness or negligence or not; and that the defendants were responsible for the damages occasioned, by the collision, although that collision, was caused by the negligence of the Hudson and Berkshire Road alone. 1. The defendants are common carriers, and as such are responsible for all losses, except those occasioned by the act of God or of the king’s enemies. (Story on Bailments, § 489-491.) By the ‘‘act of God” is meant natural accidents, arising from superhuman causes, and not accidents arising from the negligence of men. (Story on Bailments, § 511; 2 Kent Com. p. 602 ; McArthur v. Sears, 21 Wend. 190; Camden & A. T. Co. v. Burke, 13 Wend. 611; Mershon v. Hobensack, Supreme Court of New Jersey, Law Reporter for December, 1850, page 415; Plaisted v. Boston R. R. &c. Co. 27 Main. R. 132.) 2. The rule and the principle of the rule are the same whether there bé a total loss of the property caried, or a partial loss or damage to property ultimately delivered. (Smith v. Griffith, 3 Hill, 333; Camden & A. T. Co. v. Burke, 13 Wend. 611; Pindall v. Renck, 4 McLean, 259 ; Burritt v. Penck, 4 McLean, 325.)
   By the Court. Woodruff, J.

The undertaking and duty of a common carrier, on receiving goods for carriage, is twofold: First, to carry and deliver safely. Second, so to carry and deliver within a reasonable time.

The first duty is absolute. Hothing but the act of God or the public enemies will relieve the carrier from its performance.

The second duty is relative, depending upon various circumstances and conditions under which goods are received, the means at the command of the carrier, and the absence of fault on his part in the provision he has made for the performance of his duty.

What is a reasonable time must always be determined by the circumstances under which the carrier acts, and not by the inquiry what, under other circumstances, would be reasonable, nor even by the inquiry what period is ordinarily required for the performance of the service.

The distinction above stated is to be found in the elementary writers treating of the law of common carriers, and is, I apprehend, too well settled to be now open for discussion; and its recognition in this state unequivocally appears in Parsons v. Hardy, (14 Wend. 217); Harmony v. Bingham, (2 Kern. 99); Wibert v. The New York and Erie Railroad Co. (ib. 245: S. C.; 19 Barb. 36).

The delay in the present case is alleged by the defendants to have arisen from the negligent act of another railroad company, without fault on their part, by which their cars were thrown from the railroad track, and the passage of the following train (contain - ing the plaintiffs’ property) necessarily hindered.

The case of Parsons v. Hardy presented the precise question whether such an accident, caused by the act of third parties, through their misadventure or negligence, excused the delay. The court held, “ that evidence that the delay was so caused, was admissible,” and that if the fact were proved, and the accident shown to have occurred without any want of diligence, care and skill on the part of the carrier, it would excuse the delay.

And we understand the decision of Wibert v. The New York and Erie Railroad Co. to decide that common carriers, when there is no express agreement to carry within a limited time, are not responsible for delays occurring without their fault, and that this is true as well of the common law obligations of carriers as under our statute, which was the subject of much discussion both in the supreme court and court of appeals.

It is hardly necessary to add, that in disposing of this case we must be governed by the decisions referred to, and it is, therefore, unnecessary to extend our discussion upon this point.

The application of those cases to the present, shows that there was error in the charge of the Judge on the trial.

He charged that the defendants were responsible for the damages caused by the delay in making the delivery of the plaintiffs’ cattle, although the collision, which produced the delay, was caused by another railroad company; and he refused to charge that if such collision was caused by the carelessness of the other company, and the defendants were guilty of no _ carelessness or negligence, the defendants were not responsible'for any damages sustained by reason of delay in the delivery.

This, we apprehend, was making the duty of the defendants, to carry and deliver within the usual and customary period of transportation from Albany to Eew York, just as absolute and unqualified as their duty to carry and deliver. In effect, it allowed no excuse for delay, which would not excuse a failure to deliver.

If the accident, which caused the delay, happened through the fault of another company, and without any concurring fault or neglect on the part of the defendants, then, as to them, the accident was inevitable, in the sense that excuses the delay, within the rule declared by the cases above mentioned.

And if the defendants, therefore, failed in no duty which they owed to the plaintiff, they not having stipulated, by their contract, to carry and deliver within any limited time, are not responsible for damages resulting from the delay in delivering the cattle in question.

How the jury would have found, had the question whether the delay, and the consequent injury to the plaintiff’s cattle, were without the fault or negligence of the defendants or their servants, been submitted to them, we are not able to say. If we could determine what is the weight of the evidence upon that subject, we should not consider ourselves at liberty to do so. But if the jury had found in the defendants’ favor, upon that question, then the delay was caused by what was, as to the defendants, an inevitable accident, which, according to the cases mentioned, would excuse them.

If¡ then, the defendants are not responsible for the delay in the delivery, that being excused, the excuse must necessarily relieve them from liability for any injury to the property which is the mere result of the delay. That is, in the case before us, the injury described by the witness as the shrinkage, fatigue, and trampling of the cattle upon each other, by reason of the increased time consumed in the carriage.

So far as this was the mere result of delay, it must stand upon the same footing as the depreciation or deterioration of property, in the course of transportation, from its own inherent character and liability to decay, or injury from mere lapse of time, or from the act of carriage itself. Eo rule of responsibility imposes upon the carrier losses arising from the ordinary deterioration of goods in quantity or quality, in the course of transportation, or from their inherent infirmity or tendency to decay.)

We are not able to perceive any reason upon which the shrinkage of the plaintiff’s cattle, their disposition to become restive, and their trampling upon each other when some of them lie down from fatigue, is not to be deemed an injury arising from the nature and inherent character of the property carried, as truly as if the property had been of any description of perishable goods.

The rule undoubtedly requires of the carrier, that he use all reasonable and proper care that the delay may not be unnecessarily prejudicial.

And under the rule above stated, if the delay was without the fault of the defendants, it is entirely clear that the damages, which consisted (as alleged) in the loss of the market, cannot be recovered. The claim has no foundation whatever, save in the mere lapse of time, and if that be excused, the claim is obviously groundless.

This, perhaps, renders any further discussion of this case unnecessary ; but I add, nevertheless, the further observation, that if the delay was caused by the admitted negligence of the defendants, I very much doubt the liability of the defendants to any such claim. In the absence of an express agreement as to time, made with a view to a delivery for the market of a specified day, it cannot be intended that the contingencies of the market were at all within the contemplation of the parties; nor is it obvious what particular day is to be taken by which to test the amount of such a loss. There would seem to be no reason for taking the very day of the expected arrival, if intermediate to that day and the day of the trial, there has been a fluctuation in prices, some higher and some lower than on the first-named day. Nor would it be reasonable to fix the time for ascertaining the depreciation at the very day of the actual arrival, without permitting the defendants to say, and show, that if the plaintiff had left the property for some reasonable time thereafter, they would have realized from the higher prices then prevailing, as much, or even more, than by a sale on tfie day whep the property was expected to arrive.

In truth, damages of this description are too remote and contingent to be ascribed to the delay, whether the delay be excused or not. They do not result from the delay, but from other causes. Non constat that the plaintiffs would have sold their cattle had they arrived one day earlier; or, if they had sold them, that they would have brought any higher price than they did bring. It cannot be known but that the addition of these very cattle, to the stock on hand, would have produced, one day earlier, all the fall in the market which took place on the day of their arrival. But I do not deem it necessary to pursue this branch of the subject, since, if the delay be excused, the claim necessarily falls. In the able opinion of Mr. Justice Marvin, in Wibert v. The N. Y. & Erie R. R. Co. (19 Barb. 36,) this subject is very fully discussed, and his conclusion is ably sustained, viz., that no recovery can be had of damages of this description, from whatever cause the delay arises. In the Court of Appeals the decision that, the delay having occurred without the fault of the defendants, they were not liable at all, rendered the discussion of this other question unnecessary.

A new trial must be ordered, with costs to abide the event.