(dissenting):
This action was commenced in the Municipal Court Upon oral pleadings,- the statement-in the record being that the plaintiff “ complainéd of the defendant for loss of goods by common carrier,” and the defendant answered said complaint by a general denial. The plaintiff proved that on Tuesday* the 10th of October, 1899, -he shipped a crate of five dogs by the Adams Express Company to Danbury, Conn. This shipment was made at fifteen minutes to seven o’clock in the morning. The dogs appear to have been shipped, in pursuance of *253an understanding with the superintendent of the company, at Canal street, and the plaintiff there paid the express charges of over five dollars. When the expressman came for the dogs on Tuesday morning the plaintiff placed the dogs in a box in the presence of the express driver. The box was locked, the key being retained by plaintiff. The usual time for the delivery from the plaintiff’s residence in Cherry street, New York, to Danbury, Conn., is about six hours. The plaintiff told the representative of the defendant that the dogs must be let out to be relieved. The arrangement with the plaintiff’s representative at the time the plaintiff delivered the dogs was that the crate of dogs was to go on the eight o’clock train on Tuesday morning. It appeared that subsequently the expressman called upon the plaintiff and said that the plaintiff could not get the dogs on the eight o’clock train, but could get them on the nine o’clock train. The plaintiff then went to the depot for the nine o’clock train, but was informed that the dogs had gone down on the eight o’clock train. The plaintiff then went to Danbury, where he had entered these dogs for exhibition at a fair, but found that the dogs had not' arrived, the defendant having failed to ship them on either the eight or nine o’clock train for some reason not disclosed by the record. Subsequently, in the afternoon of that day, the dogs were returned to the plaintiff’s house and seem to have been left there in his absence until the following morning, when, in consequence of a telegraphic communication from the plaintiff at Dan-bury, they were shipped to Danbury, but were not received by the plaintiff until late at night. When received, in consequence of their confinement in the box, one of the dogs suffered injury from which he subsequently died, and it is to recover for the value of the dog that this action is brought.
There was no excuse given by the defendant for the failure to ship the dogs on Tuesday morning. The court gave judgment for the plaintiff for the value of the dog, and there is no question presented as to the amount of the judgment. The dogs were to be delivered to the plaintiff at Danbury, Conn. The defendant had first undertaken to send them by the eight o’clock train, and then stated to the plaintiff that they would be sent by the nine o’clock train. The plaintiff, accepting this notice, went on the nine o’clock train, but the dogs were not shipped on that day. Here *254was a clear breach of the contract between the plaintiff and the defendant, and I can see no reason why the defendant was not liable for the damages resulting from the breach. Whether or ■not- the defendant’s representative understood the serious consequences that resulted from the confinement of this dog in a box for a period of ■ over twenty-four hours does not seem to be material. The defendant undertook to transport the dog upon a particular train on a particular day and failed to perform that undertaking. The proximate result of that failure was the confinement of the dog in this box for over thirty-six hours, in consequence of which the dog died. There was no supervening cause or independent force which produced the injury. It was the- direct: result of the failure of the defendant to carry out its undertaking to transport the dog to Danbury upon the eight or nine o’clock train on Tuesday morning. It is quite true that the defendant as a common carrier was not an insurer of the dog’s life. If the defendant had transported this dog upon the train at the time contemplated by the parties' when the dog was delivered, and .the dog had died for.any reason not directly attributable to the negligence of the defendant, it is clear that the defendant would not have been liable ; but here the injury was occasioned by the failure of the defendant to transport it upon the day and train upon which it had undertaken to transport it at the time the contract between the parties was made. If, when the defendant received these dogs, it had, instead of sending them by train to Danbury, kept them in its. warehouse until the dogs died from thirst or hunger, it could not, I. think, be disputed but that the defendant would be liable, although the. cause of the injury was a cause that would not have affected a. box containing inanimate matter. I think the same rule should be applied as in the case of perishable articles, like' fruit or other food products, which the defendant had undér.taken to transport by a. particular train and because of a failure to transport it by the train agreed upon the product had become valueless. In that case the injury would not be occasioned by the inherent quality of the article to be transported, but by the neglect of the defendant to transport, it within a reasonable time, or according to its contract. So in this case, the direct result of the death of the dog was his confinement ■in this box for a period of thirty-six hours, when, if the contract. *255had been carried out, he would have been delivered to the plaintiff in Danbury within six hours. I thinlc, therefore, there was evidence to sustain this judgment. Nor do I think there was any negligence on the part of the plaintiff which could affect his right to recover. He was at Danbury, and when he heard that the dogs were in' New York ' he telephoned instructions to send them on the five o’clock train on the following Wednesday morning. The dogs evidently did not come on the five o’clock train, as they did not reach Danbury until late that night. It was evident, therefore, that these instructions were not carried out. I think, therefore, that the direct cause of the death of the dog was the failure of the defendant to perform its contract, and for that the defendant was liable.
I think the judgment should be affirmed, with costs.
Hatch, J., concurred.
Determination of Appellate Term and judgment of Municipal Court reversed, and new trial ordered, with costs to appellant to abide event.