The court below dismissed the complaint herein at the close of the whole case, and the appeal is from the judgment dismissing the complaint. In thus disposing of the case I think' the learned court erred, and that there should be a reversal of this judgment.
The action is brought to recover damages for the loss of part of a shipment of metals delivered to the defendant railway at Passaic, N. J., by L. Chirichello & Sons for transportation to the plaintiffs at New York city. The defendant has a freight house or station at Passaic, and between this house and the main track lie two pieces of track which are connected with each other and with the defendant’s main track by two sets of switches, allowing freight cars to be placed either on the track nearest the freight house for loading or unloading at the freight house, or, on the other track, for the receipt and delivery of freight at certain private warehouses lying along and adjacent to the defendant’s track and extending from defendant’s freight house in a northerly and southerly direction. The latter track is a mile long, and has a bulkhead bumping block at each end. The defendant is the lessee of the land and tracks and has exclusive control of them. The warehouse of Chirichello & Sons is located along this latter track at a point 145 feet to the south of the freight house itself. In front of the warehouse was a platform belonging to Chirichello & Sons running out toward the track. On the morning of December 14,. 1914, a freight car, referred to as Erie 104504, was switched by the defendant onto the track immediately in front of Chirichello & Sons’ platform for the purpose of being loaded. Certain metals were then placed in the car by Chirichello & Sons from the platform on the same day. The loading was completed at about half-past three in the afternoon, and a bill of lading was made out and taken to the freight house near by, where the defendant’s agent signed it between four and four-thirty on the same day. After signing the bill of lading the agent directed an employee to seal the car doors, and the doors were accordingly sealed with the Passaic seal at about five.p. m. A little before seven on the morning of December fifteenth it was discovered that the car door on the *247side facing Chirichello’s building was open, the seal broken, and barrels containing the metals were lying inside the car with their burlap heads opened and the metal scattered on the floor. The defendant weighed the metals and found the weight to be much less than the original weights. After this discovery the defendant attached the car to a train and transported the remaining metals to New York and delivered them to the plaintiff. It appears quite clearly that the metals were stolen from the car while it was still upon the track where it had been loaded and that the car was not attached to a train until about eight-thirty the next morning, which was after the theft of the metals had been committed. It having been shown that the theft was committed before the car was attached to a train, the defendant asked for and obtained a dismissal of the complaint on the ground that under the bill of lading the defendant is not liable for this loss occurring while the car was on a siding and before it had been attached to a train: The shipment was received by the defendant and transported to New York subject to the conditions of the uniform bill of lading of a standard form on file with the Interstate Commerce Commission. Part of section 5 of the conditions indorsed on the bill of lading provided as follows: “Property destined to or taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landing shall be at owner’s risk until the cars are attached to and after they are detached from trains.”
It is practically conceded that if the theft of the property had been committed after the car had been attached to a train the defendant would be liable. The principal question to be decided is whether under the bill of lading and under the evidence in the case the property stolen was at the owner’s risk because the car in question had not been attached to a train before the theft was committed. In the view I take of the evidence it is altogether immaterial whether the car was or was not attached to a train before the larceny of the property: The track upon which the car was loaded was neither a “pri*248vate or other siding ” within the meaning of the bill of lading. It was merely a part of defendant’s terminal and freight yard. It was so placed with reference to the main tracks that it could be used for general switching purposes, car storage, or for the receipt and delivery of freight to the seventeen various business concerns adjacent to the track in the immediate vicinity of the freight house. In determining the rights and liabilities of the parties under this interstate shipment we must be governed by the acts of Congress, bills of lading and common-law rules as accepted and applied in Federal tribunals. {Cincinnati <& Texas Pac. Ry. v. Rankin, 241 U. S. 319.) The track in question is not a private siding within the meaning of the bill of lading. In railroad law as interpreted by Federal tribunals private sidings are those “outside the carrier’s right of way, yard and terminals, and of which the railroad does not own either the rails, ties, roadbed, or right of way.” (Conference Ruling 121 of the Interstate Commerce Commission.) In the case of Associated Jobbers of Los Ángeles v. A., T. & S. F. By. Co. (18 I. C. C. 310, 316) the Commission refers to a “ private ” siding as “ one not owned by the railroad and which is not a part of the railroad’s own terminals. ” In the case of N. Y. C. & H. R. R. R. Co. v. General El. Co. (219 N. Y. 227) Judge Cardozo uses the following language: “Private sidings, owned and maintained by shippers, do not constitute the right of way, and the use that the carrier may be compelled to make of them is subordinate and incidental to the fulfillment of its primary function of"carriage along its route.” (See, also, Los Angeles Switching Case, 234 U. S. 294.) Nor is the track in question to be included in the term “other sidings.” These words do not comprehend within their meaning all sidings other than private sidings; for instance, they would not include a siding directly in front of defendant’s freight station in charge of an agent. They doubtless refer to those sidings which, like private sidings, are not owned and controlled by the railroad. They would include a public siding, since a public siding cannot be said to be owned by the railway.
Thus construed this bill of lading absolves the defendant from liability for loss of property at its own station, wharf or landing, where it has no regularly appointed agent after the *249property has been unloaded from cars or vessels, and, in the case of shipments at those places, until loaded into cars or vessels; and when the property is received from or delivered at wharves and landings not owned by the defendant, it is not liable for loss until the cars are attached to a train, and in case of delivery it is not liable after they are detached therefrom. And, finally, where the property is placed in cars on private side tracks, or on other tracks over which the railroad has no control, the property is at the owner’s risk until the car is attached to a train, or, in case of delivery, the defendant is not liable after the car is detached therefrom.
Even if we deemed defendant’s track to be an industrial spur or siding because it serves more or less exclusively several private industries adjacent to it, it is not a “private or other siding” within the meaning of the bill of lading. Referring to industrial spurs and sidings the Interstate Commerce Commission has said in the case of Associated Jobbers of Los Angeles v. A., T. & S. F. By. Co. (18 I. C. C. 312): “* * * These industry spur tracks are not private, in that the carrier may use them for . purposes of its own — as for storage of cars, as leads to other industries and sometimes for public delivery. * * * Each of such spurs is in a real sense a railroad terminal at which the carrier receives and delivers freight — a special, and generally in practice an exclusive, railroad depot for the carload freight of a particular shipper. * * * We are fully convinced * * * that they are portions of the terminal facilities of the carrier with whose fines they connect, and, together with the team tracks and other yards, form the terminal facilities of these carriers.” The Commission accordingly found that the contract of carriage was not performed until there was a delivery by the carrier at the industry on the spur track. (Tap Line Cases, 234 U. S. 1, 25.)
The obvious fact appearing in the evidence in this case is that the track upon which the car in question was loaded was in no sense a private or public track, but simply a track within the limits of defendant’s freight station, entirely subject to defendant’s control, and used for the mutual convenience of the railroad and shippers for the receipt and delivery of freight, and capable of being used for other railroad purposes *250by the defendant. It was merely an extension of defendant’s freight depot, at which it received the property in question for transportation and for the loss of which it could be held liable irrespective of whether or not it was attached to a train.
The judgment should be reversed and a new trial granted.
McLaughlin, J., concurred.
Judgment affirmed, with costs.