Ward v. Vanderbilt ( 1863 )

By the Court.

Balcoh J.

The facts in this case are substantially like those in Williams v. Vanderbilt, 28 N. Y. 217, decided at this term of the court. The requests that the defendant’s counsel made upon the judge, to charge the jury, do not make this case materially different from 'that brought by Williams, (above). Those he first made were : 1. That the testimony did not establish that the defendant was a common carrier from New York to San Francisco. 2. That the testimony did not11 establish any violation or neglect of duty on the part of the defendant. 3. That, upon the whole evidence in the cause, the plaintiff was not entitled to recover. I am of the opinion the judge properly refused to charge either of these requests. There was sufficient evidence to make it his duty to submit the questions to the jury. 1. Whether the defendant was a common carrier of passengers from New York to San Francisco, 17 N. Y. 310. 2. Whether he was guilty of neglect or violation of duty to the plaintiff. 3. Whether, upon the whole evidence in the cause, the plaintiff was entitled to recover.

The judge rightfully refused to charge, . . . “that there was no evidence of the value of the plaintiff’s time, and that the plaintiff was not entitled to recover for loss of time.” The fact that there was no evidence of the value of the plaintiff’s time did not preclude the jury from giving such compensation therefor as they deemed was reasonable. There was sufficient evidence to make it the duty of the jury to determine whether the plaintiff’s sickness and loss of time were occasioned by the fault of the defendant, his agents or servants. And if the same were so occasioned, the plaintiff was certainly entitled to compensation therefor.

The other requests of the defendant’s counsel were as follows, to wit: “ The plaintiff is not entitled to recover his expenses incurred after receiving notice of the loss of the North America, and before commencing his journey home. The plaintiff is not entitled to recover the expenses of his return. If the jury find that the damages sustained by the plaintiff were occasioned by the loss of the North America, and that loss occurred before the plaintiff engaged his passage, but both plaintiff and defendant were ignorant of the loss, and dealt in godd faith, then the dealing was based upon a mistake of fact, and the plaintiff is not entitled to recover in this action. When a person engaged in the business of transportation, advertises or holds out to the public that he will carry passengers generally, between two points, or points or places, without disclosing the means of conveyance to be used for such carriage, he is bound, in case of the loss or destruction of the conveyance to which the passenger is assigned, to supply another conveyance, if one can be | supplied by reasonable diligence. But where the carrier holds out to the public, and notifies the passenger applying for passage that he will carry the passenger hy a particular conveyance, which is described and designated, the undertaking of the carrier is restricted to that conveyance, and in case of the loss or detention of that conveyance, without negligence and by the act of God, the carrier is discharged from all liability, further than to return the passage money.” These requests were properly refused for the reasons assigned in my opinion in Williams v. Vanderbilt, supra, and the authorities therein cited. The judgment in this action should therefore he affirmed, with costs.

All the judges concurred, except Rosekraets and Marviet, JJ., who did not vote.

Judgment affirmed, with costs.