Miller v. Steam Navigation Co. , 1 Seld. Notes 64 ( 1853 )

The defendants, who were common carriers between New York and Albany, on the 14th and 15th of August, 1848, at the city of New York, received on board their barge, goods directed to the plaintiff at Rochester, “care of F. M. Adams, Albany.” Adams was the agent of a line of canal boats, to whom the goods should, in the regular course of business, have been delivered to be forwarded to their 'destination. The goods arrived at Albany in the barge, on the morning of the 17th of August, and were chiefly discharged from the barge to a floating vessel or warehouse, kept by the defendants in the basin at Albany to receive goods from their barges, preparatory to a delivery to the canal lines, when fire was communicated to the float from buildings burning on the shore, and the float, barge and goods were entirely consumed. Adams was on board of the barge in the morning and saw the goods. He had a boat near by ready to take them, but had made no attempt to do so. Other boats had taken loads from the float that day, and left before the fire.

This action was brought to recover the value of the goods.

On the trial, the foregoing facts being proved, the court directed the jury to find a verdict for the plaintiff for the value of the goods, and judgment was rendered accordingly.

Held, that the defendants held the goods as common carriers at the time of the fire, and were liable lor their loss.

That there was nothing to show an intention on their part to store the goods, or to justify their doing so if such had been their intention. That the facts showed that, instead of being engaged in storing the goods, they were placing them in a situation to be delivered according to their contract.

That the defendants, not having raised on the trial the question whether a reasonable time for the consignee to take away the goods had not elapsed, could not, if it was material, raise it in this court.

That there being no evidence to show how the fire originated, the presumption was that it arose from some act of man and not from lightning.

(S. C., 13 Barb. 361; 10 N. Y. 431.)