WARD v. VANDERBILT

WARD v. VANDERBILT. December, 1863. Affirming 29 Barb. 491. The decision in Williams v. Vanderbilt, 28 N. Y. 217, affirming 29 Barb. 491,) that a part owner oí one of several connecting lines may be held liable as carrier over the whole route,—re-asserted In awarding damages against a carrier for neglect to transport a passenger according to contract, the jury may allow a reasonable compensation for the time lost by plaintiff, though no specific evidence of its value has been adduced. a Harvey Ward sued Cornelius Vanderbilt, as a common carrier of passengers from New York City to San Francisco, for neglect of duty in not transporting him without unnecessary delay or detention. In March 1859, plaintiff paid the defendant two hundred and fifty dollars for the entire trip, and received in return tickets indicating the ships, and the mode of transit across the Isthmus, by which defendant proposed to convey him to California. The evidence on the question whether defendant was a carrier for the whole route, established that he advertised the line as “Vanderbilt’s new line between New York and San Francisco,” giving the names of the ships on the Atlantic and Pacific, and'Stating that passengers-, would be promptly conveyed over the new transit route of the Hicaragua Company, having but twelve miles of land transportation, and directing persons desiring passage to apply only at the office of the line, Ho. 9 Battery-place. That plaintiff applied at that place for a passage to San Francisco; over the' door of the office he found a sign “Vanderbilt’s line for California,” or “Vanderbilt’s through line to California;” and he there received for one entire sum of two hundred and fifty dollars, two tickets headed “Vanderbilt’s line for California, via Hicaragua;” one ticket being for the Atlantic and one for the Pacific steamer, with a third ticket for the transit route. Also that defendant owned the steamers on the Atlantic side and was part owner of those on the Pacific. Plaintiff left New York, March 5, 1859, in the appointed steamer, and arrived at Greytown in due season, March 14. There he was detained eleven days, but no evidence was given as to the cause of the detention. Two days after leaving Grey-town, in crossing the Isthmus, he was taken sick with bowel complaint. He arrived at San Juan del Sur, on April 4. The boats in which the passengers were earned on the Isthmus, were repeatedly delayed, and a number of the passengers were sick. On arrival at San Juan del Sur, on the Pacific coast, plaintiff and the other passengers having tickets for the steamer North America, were required to wait there fifteen days in expectation .of her arrival. Meanwhile, however, the North America had been lost at sea, about February 27, a fact unknown to the defendant, till about May 20. The plaintiff, having unsuccessfully endeavored -to procure a passage to San Francisco upon another vessel, returned to New York, still sick with fever; and commenced this action. • A similar action by one Williams, against the same defendant, was tried at the same time. The charge and requests to charge are sufficiently stated in the opinion. The jury found for plaintiff one thousand dollars damages. The supreme court, on appeal from an order denying defendant’s motion on a case, for a new trial, held that the facts above stated imported a contract by defendant as a common carrier to carry plaintiff over the entire route, and was sufficient to go to the jury on that question; that it was his duty to provide a new vessel on the loss of the one designated in the contract and that the question of negligence was fairly submitted to the jury. Reported in 29 Barb. 491. Defendant appealed. Charles A. Sapallo, for defendant, appellant, insisted that the contract was a special one limited to the vessel named. Bonesteel v. Vanderbilt, 21 Barb. 26. And the vessel having been lost when the contract was made the contract was made under a mistake of facts; Ib. Briggs v. Vanderbilt, 19 Id. 222. 3 Johns. 335; 4 Campl. 241; and that there was no evidence justifying damages for loss of health. George Rathbun, as to duty to provide another vessel, cited, Oakley v. Morton, 11 N. Y. 25; Inman v. Fire Ins. Co., 12 Wend. 452; Harmony v. Bingham, 12 N. Y. 99; Bonesteel v. Vanderbilt, 21 Barb. 26; Pars. on Cont. 184, 185; White v. Warn, 26 Me. 368; Chapman v. Dalton. 1 Plow. 284. See the similar case of Van Buskirk v. Roberts, in 31 N. Y. 661. [MAJORITY — Balcoh J.] 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.