The defendants, as common carriers, received, at Albany, on the 5th of February, 1857, three boxes of dry goods, in good order, to be transported from Albany to Rochester, for a consideration which was to be paid on delivery. Two of said boxes were forwarded immediately, on their arrival at Albany by the Hudson River Railroad; and the other, not being accompanied by a bill of back charges from the Hudson River Railroad, was detained by the appellants at their warehouse in Albany. While so detained, the contents of said box were injured by being wet by a rise in the Hudson river, on the 7th, 8th and 9th days of February, 1857. This box was afterwards shipped to, and on or about the 17th day of February, 1857, received by the respondents, unaccompanied by a bill of back charges from the Hudson River Railroad Company. Said goods, while so detained at Albany, were damaged by the said flood, to the extent of $100. The jury, under the direction of the court, found a verdict for the plaintiffs, and judgment thereon was affirmed at the general term.
Two questions are presented for consideration in this case.
1. Whether the defendants are excusable for the detention of the box at Albany; if not, then was it negligence in them so to do?
2. The injury having happened to the goods by an act of God, are the defendants responsible for that injury, under the circumstances presented in this case?
The law is well settled that common carriers, while engaged in the transportation of goods for hire, are not responsible for injuries to them, caused by an act of God, or the public enemy. With the exception of injuries thus caused, they are liable for all damage to goods entrusted to them, while under their care and control. For the reasons stated in the opinion in the case ofRead v. Spaulding, decided at this term, the carrier, to exempt himself, must show that he was free from fault at the time the injury or damage happened. He must show that he was without *Page 579 fault himself, and that no act or neglect of his concurred in or contributed to the injury. If he has departed from the line of duty, and has violated his contract, and while thus in fault, and in consequence of that fault, the goods are injured by an act of God, which would not otherwise have produced the injury, then the carrier is not protected. In the present case, it is apparent that if the goods had not been detained at Albany until the happening of the flood no injury to them would have occurred. The question then recurs, was such detention justifiable, or was it negligence on the part of the defendants? They seek to justify it, on the ground that by their regulations, goods received from a connecting road, were not forwarded until the receipt of a bill of back charges. When the goods in the present case were delivered to the defendants by the Hudson River Railroad Company, who in this respect, acted as the agents of the plaintiffs, to be transported to Rochester, and the same was received by them for that purpose, it became the duty of the defendants immediately to send them off. If the Hudson River Railroad Company delivered no bill of back charges with the goods, nor gave any notice that any such existed, the defendants should have assumed that there were none, and they would have been justified in delivering the goods to the plaintiffs, without any claim for such charges. Clearly the Hudson River Railroad Company could have had no claim upon the defendants for any bill for back charges. They discharged their lien upon the goods for such back charges, by the delivery of the same to the defendants, to be carried and delivered to the plaintiffs without any notice of claim for any such charges; and if any existed, they would have been remitted therefor to their claim against the plaintiffs personally.
I am unable to see any justification to the defendants, for detaining the plaintiffs' goods because the Hudson River Railroad Company did not present a bill for back charges. It's omission to do so, or to give notice that such charges existed, should have been taken as evidence, by the defendants, *Page 580 that in fact there were no back charges. The ground assumed, that they were justified in detaining the goods until a bill of back charges was presented, cannot be maintained. The regulation of the defendants may be reasonable enough as between the two companies, but it cannot be permitted to affect the rights of third parties, ignorant of its existence, and who cannot be presumed to have contracted with reference to it. If the defendants were not excusable for the detention of the box of goods in Albany, to await the rendering of a bill for back charges by the Hudson River Railroad Company, then such detention was negligence on their part. Such negligence having concurred in and contributed to the injury to the plaintiffs' goods, they are precluded from claiming the exemption from liability which the law would otherwise extend to them. The court, on the trial, properly, therefore, refused to give the instructions asked for by the defendants' counsel, and the instructions and charge to the jury were such as, under the facts proven, it was the duty of the court to give. The judgment appealed from should be affirmed, with costs.
DENIO, Ch. J., was for affirmance on the ground stated by DAVIES, J., and lastly stated by WRIGHT, J.; but did not know that he could concur with WRIGHT, J., as to what is "an act of God." All the other judges concurred with the chief judge, except SELDEN and INGRAHAM, JJ., who did not sit in the case.
Judgment affirmed. *Page 581