(dissenting). I dissent from the conclusions of the majority of the court and vote for affirmance.
Plaintiff shipped a carload of horses from Fergus Falls, Minn., to Herkimer, N. Y., by the defendant’s express service. The shipment left Fergus Falls January 16, 1921, about nine-thirty a. m. It arrived at Chicago on the forenoon of January seventeenth, and at that point the horses were unloaded, fed and watered. The car left Chicago at eight-thirty p. m. January seventeenth, and arrived in Utica about nine p. m. January 18, 1921.
The car had been put on a train that did not stop at Herkimer so it was cut out of the train at Utica, and was detained there from about nine p. m. January eighteenth, until after ten o’clock in the morning of January nineteenth, when it was attached to a train that stopped at Herkimer, reaching the latter point about half past eleven on the morning of January nineteenth. The horses had not been unloaded, fed or watered after leaving Chicago at eight-thirty p. m. January seventeenth.
*89The jury could find that the shipment was transported from Chicago to Utica in a reasonable time, but because of the fact that it had been placed in a train that did not stop at Herkimer it was cut out of that train at Utica and there Was a delay of over fourteen hours before the car was attached to a train that stopped at Herkimer.
The jury could find that Herkimer is only fifteen miles from Utica and under ordinary circumstances it Would take less than an hour for a train to travel between these two points; that on the night the shipment reached Utica plaintiff Was told by the man in charge of the defendant’s office there that a train would arrive at ten o’clock that night that would take the horses to Herkimer, and he later told plaintiff that there would be a train at twelve o’clock that would take the horses to Herkimer, but they Were not taken from the Utica yards till after ten o’clock in the forenoon of the next day, reaching Herkimer at eleven-thirty A. M., over fourteen hours after they had been sidetracked at Utica.
Plaintiff based his claim for damages on delay of the defendant in furnishing a car within a reasonable time after he had ordered it at Fergus Falls, and also on account of defendant’s negligence in failing to transport the car to its destination within a reasonable time.
At the conclusion of the main charge, the court at the request of defendant charged that there was no binding contract between the parties to furnish a car until the uniform express receipt had been signed. The car was furnished at Fergus Falls on January 15, 1921, whereas the uniform express receipt was dated January 16, 1921. Under this charge the claim for damages for failure to furnish the car within a reasonable time after it had been ordered by plaintiff was eliminated from the case. It Was the last word of the court to the jury, and I do not see how the form of the verdict could embrace a cause of action that had been specifically charged out of the case at defendant’s request.
That left the question of the alleged negligence of defendant for failure to transport the car in a reasonable time for the jury.
When the car reached Utica it was not placed at a chute where the horses could be unloaded, fed and watered, but was left in the yard at a considerable distance from any such facilities, and plaintiff could not be charged with carelessness in failing to unload, feed and water the horses at a point where he could not unload them for any purpose.
Attaching the car in which the horses were shipped to a train that did not stop at the destination point was certainly not the fault of the plaintiff, and I think it was for the jury to say whether *90defendant was negligent in leaving the car in the railroad yard at Utica within fifteen miles of its destination, which distance could ordinarily be traveled in less than an hour, and leaving the horses in the car at a place where unloading was impossible, and allowing them, to remain there fourteen hours without food and Water before shipping them on to their destination. (Plass v. Barrett, 181 App. Div. 131.)
It was also for the jury to say under the evidence whether the claimed damage to the horses was the result of defendant’s negligence in delaying the shipment at Utica.
The findings of the jury on these questions were supported by ample evidence.
The judgment and order should be affirmed, with costs.
Judgment and order reversed on the law and facts and new trial granted, with costs to the appellant to abide the event.