The Carmack Amendment to the Hepburn Bill, amending the Interstate Commerce Act (24 U. S. Stat. at Large, 386, § 20, as amd. by 34 id. 593, 595, §7; Id. 838, Res. No. 47), so far as we are interested in it, provides that the carrier shall issue a receipt or bill of lading for goods received for transportation, “and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it * * * and no contract, receipt, rule, or regulation shall exempt such common carrier * * * from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. ”
I agree that this provision controls the shipment in question. The conditions and limitations in the bill of lading maybe disregarded as violative of the statute quoted. The liability then *740rests upon the statute. The sole question, therefore, is, was the defendant’s negligence the proximate cause of the plaintiff’s loss?
An unusual freshet, continuing for some days, caused by the heavy rains within the watershed, raised the water of the Hudson river to an unprecedented height. The peak of the flood was between noon and one o’clock in the afternoon on the twenty-eighth of March, at which time the water was about five feet higher than the highest previous record. The hydro-graphic engineer in the employ of the Federal government swears that at Troy prior to one o’clock on the twenty-seventh the water raised one-fifth of a foot an hour; after that until it reached the peak one-tenth of a foot an hour, and it fell with the same degree of fall. At this rate of advancement twenty-four hours prior to noon on the twenty-eighth the water must have been about two and two-fifths feet lower than it was at the peak, which would make the flood at noon on the twenty-seventh about two and three-fifths feet higher than any previous flood.
The car left Rensselaer at ten-forty A. M. on the twenty-seventh; it does not appear definitely when it arrived at Troy, but probably about noon of that day. When the defendant placed the plaintiffs’ car in immediate proximity to the car of unslaked lime it knew that the water was higher than it ever had been known to be before and was still rising. It, therefore, owed the plaintiffs an active duty to use reasonable care not to expose their property unnecessarily. It knew, or was chargeable with knowledge, that if the water reached the unslacked lime a fire would naturally result. We may assume that it knew or should have known the contents of the car containing the lime. It is true that the unusual height of the water caused the car containing the lime to burn, but if the car containing the plaintiffs’ goods had been properly placed the burning of that car would have caused the plaintiffs no injury. The loss, as a proximate cause, is due to the fact that the defendant negligently placed plaintiffs’ goods next to the car of lime. The question for the jury was whether, under all the circumstances, the placing of the car was a negligent act on the part of the defendant which was the proximate cause of *741the plaintiffs’ loss. We find no exception calling for reversal. I favor affirmance.
All concurred, except Howard, J., dissenting in opinion, in which Smith, P. J., concurred.