The opinion of the court was delivered by
Barrett, J.The County Court seem to have regarded the facts stated by Hicks on cross-examination, as decisively fixing liability on the defendant for the injury to the property. That Hicks saw the articles as they had been fixed and fastened by the plaintiff, and thought the fastenings inadequate, seems to have been regarded as the vital fact working that result. The fastening, whose insufficiency caused the injury, had not been changed in any respect when Hicks saw it, nor when the accident happened. Had that fastening been sufficient, the accident would *370not have happened. Is the defendant chargeable with the consequences of that insufficiency ? We think not, in the sense in which the County Court seems to have regarded it. The undertaking and duty of the defendant was, to transport and deliver safely against all contingencies except the act of God, public enemies, and acts of the parties shipping the property. It was the insurer against everything but those. But as against them, it was bound only to the exercise of reasonable care-and diligence.
In this case, it undertook to transport the articles safely, in the condition in which the plaintiff had packed them, insuring against everything but that condition and its consequences, and bound to use reasonable care and diligence against injury resulting from that condition. The car was procured by the plaintiff of another railroad company, it was taken and loaded by the plaintiff in his own way, and as loaded, came to defendant from another road, and was taken by the defendant in the line of transportation to Troy, in the condition in which the plaintiff had loaded and prepared it for transportation. The plaintiff did not ask nor expect anything more to be done by the railroads in that respect. It stands for consideration the same as if the plaintiff had put the articles into boxes, and had loaded them in his own way. He would have the risk of the sufficiency of the packing. If damage should occur by reason of insufficiency in that packing, the carrier would not be liable for it. If on the journey the boxes should get broken and the packing loosened and insecure, it would become the duty of the carrier to exercise reasonable and proper care to secure the articles against injury on that account. But supposing the boxes to have remained whole, and it should not appear that the contents hád got loose, it would be difficult to assign a reason why the carrier should be chargeable for injury resulting solely from their having got loose, or from the boxes not proving strong enough to hold them.
In the case before us, the testimony is that the blocking under the largo wheel that finally gave way and caused the injury, was in its place, and did not appear to have been started or stirred at all, and the only defect in it was, that it was insufficient in the first place.
*371It seems incongruous for the plaintiff to claim that the defendant should oveijudge him in a matter in which he assumed to judge and to do all that he required or supposed necessary to be done in the premises, and that the defendant should be responsible for the inadequacy of what the plaintiff adjudged and did. If things continued to be just as the plaintiff had fixed them, and nothing occurred in the transportation, against which the defendant was bound to exercise precautions beyond what the plaintiff had done, there would seem to be no ground for holding the defendant liable for the plaintiff’s shortcoming.
We think the cause should have been submitted to the jury upon views conformable to what is above expressed, for them to find from the evidence whether the injury was caused by the failure of the defendant to exercise reasonable and proper care in respect to the fastenings and the transportation of the articles in question.
The other question, viz., as to the right of the plaintiff to bring this suit, we think, upon the evidence, is with the plaintiff.
Judgment reversed, and cause remanded.