(No. 84.) Against a railroad company, as a common carrier, for damages by reason of a failure to carry and deliver live stock with reasonable diligence. SUPERIOR COURT-CITY OF NEW-YORK. Clinton W. Conger, William H. Radcliff and Lester Barker agt. The Hudson River Railroad Company. The plaintiffs in this action complain of the defendants, and state: That the said defendants are a corporation under the laws of the State of New-York, and own and are possessed of a certain railway or railroad extending from the city of New-York to the city of Albany, in the state aforesaid, and also of certain cars used and run over and upon the said railroad, between the cities aforesaid, for the conveyance and transportation of passengers and freight between the cities aforesaid, and, as such corporation, are common carriers of passengers and freight in and upon their said cars, so run upon their said railroad, for reasonable hire and reward to be paid therefor. And the said plaintiffs aver, that on the 29th day of March, 1854, they, the said plaintiffs, delivered to the said defendants, at the city of Albany aforesaid, sixty-five head of cattle, to be safely and securely conveyed and transported from the city of Albany to the city of New-York, upon and over said railroad, by and upon a train of cars which were to leave the said city of Albany at four o'clock in the afternoon of the day last aforesaid, and to be conveyed and transported, upon and by said railroad, with all reasonable and proper speed and diligence by the said defendants, from the city of Albany to the city of NewYork aforesaid, and to be safely and securely delivered, and with all reasonable dispatch and diligence, by the said defendants to the said plaintiffs at the said city of NewYork. And the said plaintiffs further aver, that the said defendants, at the time and place aforesaid, accepted and received the said cattle into their said cars for the purpose aforesaid, and undertook and agreed to carry and transport the same over their said railroad, by and upon the said train of cars to leave Albany at four o'clock in the afternoon of the day aforesaid, and to carry and convey the same over the said railroad with all reasonable and proper speed, and to deliver the same to the said plaintiffs at the city of New-York, safely and securely, with all reasonable and proper diligence and dispatch,1 in consideration of and at and for certain reasonable hire and reward to be paid by the said defendants therefor. And the said plaintiffs further aver, that the said defendants, disregarding their duty in that behalf, did not carry or transport the sixty-five head of cattle, or any of them, by and upon the said train of cars that left Albany at four o'clock in the afternoon of the said 29th day of March, 1854, and did not carry or convey them over their said railroad 1 The undertaking or agreement here set forth is, no doubt, nothing more than the implied contract, which the law creates, growing out of the legal duty and obligation of the common carrier on the delivery to him of goods to be fowarded. Under the old system it was always proper to plead an implied promise or agreement, that is, to plead the legal effect of the facts. But under the new system the facts themselves only should be pleaded, and legal conclusions should be left to the court. (See Pleadings, 240-244, 284.) The cause of action in such a case is better and more accurately set forth in the next precedent. with all proper and reasonable speed and diligence, or deliver the same to the said plaintiffs, in the city of New-York aforesaid, safely and securely, with reasonable and proper diligence and dispatch; on the contrary, the said plaintiffs aver, that the said defendants retained and kept the said cattle in their said cars at the city of Albany aforesaid for several hours after four o'clock in the afternoon of the said 29th day of March, 1854, and did not send or forward them until and by a train of cars leaving at or after eight o'clock in the evening of that day; and the said defendants wrongfully and negligently stopped, delayed and detained the said train of cars last mentioned, and the said plaintiffs' cattle aboard thereof, several hours on the said railroad of the said defendants during the night after their departure from Albany as aforesaid, and did not deliver the said cattle at the city of New-York until twelve hours, or thereabouts, after the time they might, could and should have been delivered, if the said defendants had carried them by the train and in the manner they had undertaken to do as aforesaid; and the said defendants did not use proper care or diligence in carrying and transporting the said cattle, whereby and by reason of the delay and detention aforesaid, the said cattle were badly bruised, injured and damaged on the said road of the said defendants, and became sick, faint and exhausted, and greatly diminished in value; and by reason of the delay and detention aforesaid, the said cattle were not delivered in New-York in season for the then next market day for the sale of cattle in New-York aforesaid, as they otherwise would have been if the said defendants had carried the same by the said train, and with reasonable speed and diligence, according to their said undertaking and agreement. And the plaintiffs further aver, that by reason of the failure and neglect of the said defendants to carry the said cattle according to their aforesaid undertaking and agreement, and by reason of their delay and detention on the road of the said defendants, and the want of care and diligence on the part of the said defendants in carrying the said cattle, they, the said plaintiffs, have sustained great loss and damage by means of the said cattle being badly bruised and injured, sick and exhausted, and have been deprived of great gains and profits which they would have made and derived by and from the said sale of the said cattle at the then next market day, and were by reason thereof compelled to keep the said cattle for several days, to wit, four days, after their arrival in the city of NewYork, and until the next market day, before selling and disposing of them, whereby they, the said plaintiffs, were put to and necessarily incurred great cost and expense in and about the keeping and feeding the said cattle in the city of New-York aforesaid. Wherefore the said plaintiffs say, that they are injured and have sustained damages, by reason of the premises aforesaid, to the amount of $828, and they demand judgment for that sum, with the costs of this action. CLARK & REED, Plaintiffs' Attorneys. (No. 85.) Another form, uniting several causes of action against the same company, for similar damages, by reason of its neglect as a common carrier. SUPREME COURT-ONTARIO COUNTY. Phineas Kent The Hudson River Railroad Company. Phineas Kent, plaintiff in this action, complaining of the Hudson River Railroad Company, defendants therein, respectfully shows the court: First. That the said defendants were, on the 1st day of January, 1853, and ever since have been, and still are, a corporation, by and under the laws of this state, engaged in the business of running railroad cars, and of transporting passengers, baggage, cattle and other live stock, and freight, by railroad, between Albany and the city of NewYork, as common carriers for hire. That in the month of March, 1853, and on Monday, the plaintiff, at Albany aforesaid (the northern terminus of defendants' railroad), by one Eli O. Taylor, his agent, delivered to the defendants eighty fat sheep, which the defendants then and there accepted and received of and from the plaintiff, and which were worth $560, to be safely and securely carried and conveyed over the route of their said road, by the defendants, from Albany to NewYork city, and then and there, with reasonable diligence and speed, and on the morning of Tuesday, the next day, to be safely and securely delivered to the plaintiff, or his agent, Eli O. Taylor, by the said defendants, for a reasonable reward paid them by the plaintiff. |