The Eehigh Valley Railroad Company operates a great railroad terminal on a peninsula extending easterly from the west or New Jersey side of the Upper Bay of New York, known
On the night of July 29/30, 1916, there were 39 cars standing on the north side of the yard, 11 loaded with high explosives, 3 with wet nitro-cellulose, 17 with ammunition for cannon, 2 with combination fuses, 5 with benzol, and 1 with toluol.
On the south side of the yard there were standing 19 cars loaded with machinery under straight nonnegotiable bills of lading for export, lighterage free, of the New York, New Haven & Hartford Railroad Company, consigned to the plaintiff, the Allied Machinery Company, and one car consigned to the same company under a straight nonnegotiable bill of lading of the Chicago & Northwestern Railway Company, goods to be delivered at Black Tom Terminal.
All of these cars, except the last, were in course of transportation in interstate commerce for export, and the liability of the defendant in respect to all of them was that of warehouseman, and not of common carrier, by virtue of a provision in the uniform bill of lading approved by the Interstate Commerce Commission providing that, in case goods are not removed within a certain time after notice of arrival, the liability of the railroad company shall become that of warehouseman.
During the night a small fire broke out in one of the ammunition cars on the north side of the yard, which gradually increased, and at 2:07 a. m. a great explosion occurred, followed by a second half an hour later, as the result of which all the goods in the 20 cars mentioned standing on the south side of the yard were damaged or destroyed. The Allied Machinery Company, as consignee of 19 cars and as assignee of the claim of the shipper of the twentieth car, instituted this suit to recover for the loss.
The plaintiffs right of recovery depends entirely on proving negligence on the part of the railroad company. The cause came on for trial before Judge Mack. The verdict was for the plaintiff for the full amount of its claim, and this writ of error was taken to the judgment entered thereon.
There are 46 assignments of error, but we shall take up only the contentions which underlie those which were argued. Tor instance, the plaintiff’s right to maintain the action was not contested, nor was its right to recover for the loss in connection with the twentieth car, which amounted to less than the sum of $3,000.
[1] The defendant claims that, if it complied with the regulations of the Interstate Commerce Commission as to the transportation of explosives, it discharged its full duty. The trial judge rightly held that those regulations were exclusive whenever they applied, but that Congress had not attempted to regulate the whole subject, and that the defendant remained under the common-law duty of exercising care according to the circumstances, wherever Congress and the Interstate Commerce Commission had provided no regulations as well as where they had. It is evident that such regulations in the nature of things
The court treated the question of the origin of the fire from two points of view, viz. either as the result of spontaneous combustion, as the defendant claimed, or incendiarism, as the plaintiff claimed. He instructed them that, if the fire was the result of spontaneous combustion, all testimony of the defendant’s practice in respect of permitting persons to come into the terminal from the- land and water sides was totally irrelevant. If, however, it. was of an incendiary origin, especially in view of the German propaganda and the general apprehension of acts of violence from German sympathizers, such evidence was quite material. Of course, in either case, the sufficiency of the fire equipment would be a relevant inquiry in connection with the question of the care exercised by the railroad company.
[2] Upon the question of the origin of the fire the court quite properly admitted, over the objection and exception of the defendant, the pleadings in two cases brought by other parties in the Supreme Court of the state of New York to recover for damages resulting from the same explosion. The complaint in each of these cases charged:
“XVIII. That the said fire and explosion hereinbefore specified in paragraph IX herein was caused by incendiarism.”
To which the defendant’s verified answer responded:
“Eighteenth. The defendant admits the allegations of paragraph XVIII of the complaint.”
These admissions were properly received, although they were not conclusive. They were made some time after the present suit was brought, and there was no attempt to qualify or explain them. Pope v. Allis, 115 U. S. 363, 6 Sup. Ct. 69, 29 L. Ed. 393; Cook v. Barr, 44 N. Y. 156.
[3] Although the action was for negligence, and not upon the bill of lading, the goods were still in the course of transportation, and the right of the consignee as lawful holder of the bill of lading to maintain an action for negligence in respect to the property held by the carrier as warehouseman is governed by the Carmack Amendment of the Interstate Commerce Act, section 7, Act June 29, 1906, 34 Stat. 595 (Comp.
“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall he liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company 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.
“That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may bo required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”
It is argued that only loss or damage can be recovered of a railroad company which is “caused by it.” Very true. But such loss or damage may be caused either by the affirmative action of the carrier or by its passive failure to exercise its common-law duty of due care according to the circumstances. It is equally liable in either case. Adams Express Co. v. Croninger, 226 U. S. 491, 506, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Kansas Southern Ry. Co. v. Karl, 227 U. S. 639, 649, 33 Sup. Ct. 391, 57 L. Ed. 683.
The case was plainly one for the jury, and the trial court submitted to their consideration in a full and fair charge the question whether the defendant exercised due care, having in view the size and character of the terminal and the storage in the yard of cars loaded with explosives and the general apprehension of incendiarism from German sympathizers, the sufficiency of .the fire equipment, as to the number of hydrants, amount of hose, proper number of watchmen, and whether its employees had seasonably discovered the fire, and had exercised proper care to extinguish it, or to reduce the extent of its effect, or whether, if it had not failed in one or more of these duties, the loss might have been prevented. If so, the damage was “caused by” the railroad company within the meaning of the Carmack Amendment.
The argument that this explosion was to be treated like an act of God, such as the Johnstown flood, the San Francisco earthquake, or the volcanic eruptions at Mt. Pelee and Mt. Etna, does not convince us; but even in such cases of vis major the. defendant would be obliged to show in addition that the loss was inevitable—that is, could not have been prevented by the exercise of due care on his part. This is exactly what the jury have found against the defendant in this case. Their verdict is binding upon us as to all questions of fact which there
[4] Finally, it is said that the trial judge erred in his remarks to the jury as to the influence of the views of the majority upon the views of the minority:
“At 12:20 the jury sent in the following note: ‘The jury is hopelessly divided.’ Whereupon the court instructed that the jury be brought in and the following took place:
“The Court: Gentlemen, I do not propose endeavoring to coerce you into coming to an agreement; but it is my duty to point out to you just what your duty is in that respect. Of course, in the end, every man must answer to his conscience—that is to say, as he thinks is right; but every juryman must make an honest endeavor to see the point of view of the other men, to keep his. mind absolutely open, not to get into an obstinate state of mind, and to endeavor, as far as he honestly can, to give the most careful thought to what a majority of his fellows believe to be the solution.
“I do not mean to say that if, after doing that, a juror is absolutely Convinced that the majority is wrong, that he has not the right to abide by his own judgment. But, just as in a case before several judges, so in a case before a jury. When one or more finds himself or themselves in a minority, or even if there is an equal division, it behooves every reasonable man to get into a condition of humility of mind as to his own powers of reasoning and judgment, and to consider and reconsider whether the majority, if there is a majority one way or .the other, has not, on the whole, reached the sounder conclusion.
“Our law compels a retrial unless the jury is unanimous. That involves both the state, the country, and the parties in a very considerable expense and loss of time, and it is for that reason that I am always loath to let a jury go on their statement—even on their repeated statement—that they believe themselves hopelessly divided. I am glad to give any further instructions on any point as to which you are in doubt; to go as fully as you please into any phase of the case that you point out, that you believe more light is needed in the way of direction as to the law, because, as X have said, in the end you have got to decide the facts.
“This case is a large one; it is, of course, of great importance to the parties, and of great importance to the state; it was well tried, tried as rapidly, I think, as it could have been tried—more rapidly than ordinarily a case of that kind is tried—and yet a disagreement will mean going through that whole process over again. Now, if you are all convinced that you have gone at this thing from all possible angles and with a firm endeavor to see one another’s point of view, and that, despite the great inconvenience to the public and the parties, further consideration is sure to be hopeless, there would be nothing further to do but to accept the inevitable. But if, after what I have just said, you think there is a chance, that you are not so hopelessly divided—I mean so evenly divided—but that, you think there is a chance that a minority may be willing again to weigh the points of difference between you in the light of the views of the majority, particularly after anything further that I could say on which you would require further light, I should want you, after recess for lunch, to get together again this afternoon.
“I know that it is an inconvenience to you, too; but, of course, that is what you are here for. Every jury duty is an inconvenience. I should not keep you to-night, but I should want to keep you this afternoon, if there is any chance whatsoever of your getting together.”
The jurors thereupon asked for further instructions in respect to the powers of the Interstate Commerce Commission in regulating the handling of explosives and as to the extent of the regulations it had actually promulgated.' After receiving further instructions upon this
'1'he judgment is affirmed.