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reasonable or prudent man have to justify him in believing that this convenient appliance was also a safe and proper one. In Marsh v. Chickering, the ladder which slipped, causing the plaintiff's hurt, had been in use by him safely for six weeks. In the case of Hubbell v. City of Yonkers, 104 N. Y. 434, 10 N. E. Rep. 858, it appeared that the street had been in the same condition since its opening, over 10 years before, and that no similar accident had occurred. In Laflin v. Railroad Co. the platform had been used for many years by passengers; and prior to the accident no one had been injured, or had suffered any inconvenience on account of the distance from the cars to the platform. The cases cited all recognize a truth, which is but a law, relating to the operations of the human mind, that what has been noticed in infinite instances to be a fact or incident attendant upon certain circumstances will be reposed upon as a fact or incident inseparable from the same circumstances. The scientist who investigates the operations of nature, and discovers the constant recurrence of a fact with certain circumstances, relies upon the truth of its permanency of place and connection in the order of the physical world, and makes it a premise in his reasoning. The inference is irresistible that what has proved, through a long experience, to be true or sufficient, will continue to be so; and practical men, in all the affairs of life, rely upon such a deduction. In the cases cited, the fact that long experience had demonstrated the continuous and unexceptive sufficiency and safety of the appli ances, the fact that through a vast number of trials, and up to the time of the accident in question, the appliances had proved to be sufficient, was admitted or conclusively proved, and afforded a ground for the court to say, as a matter of law, no evidence being given of a chance defect, or of a fault occurring, which skill or prudence would have discovered, that the attention exercised by the defendant was within the limits of ordinary or reasonable care. In the case at bar the proof in this respect was deficient, and the court would not have been justified in nonsuiting the plaintiff on the ground that the mode of handling the lumber adopted on the occasion when Ford lost his life had been demonstrated by experience to be a safe one, and the plaintiff had failed to point out any special defect that had occurred in the appliances, or special omission of ordinary duty. It does not avail for a witness to say that he had known of no like accident, or to affirm, in general language, that the manner of doing a thing was according to the mode adopted by the defendant. The facts should be proved upon which a defendant claims that the mode adopted, and upon which he relied, had been established by experience to be safe, so that the court or jury may judge of his right to rely on such experience. The evidence here fails to show such an extent of practice of the method the defendant adopted in carrying the lumber as is necessary to enable the court to say, as a matter of law, that the defendant's conduct was proper. The trial judge was therefore right in refusing to nonsuit the plaintiff on the ground so far considered.

The question remains whether there was otherwise evidence for the jury. The proofs tended to show that the defendant had never promulgated any rules, or given any direction, as to the manner of loading lumber, nor as to the kind of cars to be used for its transportation over its road. The importance and extent of the business of transporting lumber would seem to require the adoption of some system on the part of railroad companies having regard to the safety of their servants and others. But in this case the evidence was such as to allow a finding by the jury that the defendant left all that part of its duty to the foremen who superintended the loading of the lumber. These foremen, therefore, stood in the place of the defendant, and their acts were the acts of the defendant. Crispin v. Babbitt, 81 N. Y. 516; Anthony v. Leeret, 105 N. Y. 600, 12 N. E. Rep. 561; Abel v. Canal Co., 103 N. Y. 581, 9 N. E. Rep. 325. There is some evidence tending to show that the defendant's foremen had adopted, as a proper mode of loading and carrying

lumber and timber, the mode followed on the occasion when the plaintiff's intestate was killed; that is to say, the piling it on coal cars, and heaping it roof-shaped above the lateral supports or box sides of the cars, relying on the width of base, and gravity of the pieces of timber, to keep them in place. There is evidence that they, in their minds, had fixed upon this method as suitable, although there was not evidence of such a uniform and continued test of its sufficiency by use as would force upon a man's mind a conclusion that it was a safe method. The defendant claims this mode was skillful and prudent. Whether it was or not, involves a consideration of the complex subject of the car, its shape, box, want of stakes, and the heaping of the timber above the box. The plaintiff gave evidence showing the character of the cars, the height of the boxes, the omission of the stakes, the manner of piling the timber on the car-box, the length, thickness, and width of the timbers. The timbers were about twenty-eight feet in length, eight and one-quarter inches wide, and five and one-fourth inches thick. The proof of all these circumstances, together with the facts relating to the distance the timber was to be hauled, the possibility of the loose timbers, with a width of eight and one-fourth inches, falling off on the switches to be crossed, and the effect upon the load of the jolt in crossing the switches, altogether made a fair question for the jury whether the manner of loading and the mode and means of carrying this lumber, which were the acts of the defendant, were reasonably skillful, prudent, and safe. The plaintiff says they were not; and the facts, I think, were such as necessarily carried the case to the jury. The defendant says the manner and mode were sufficient, because experience had demonstrated them to be so. But, as I have shown, the proofs fail to establish the facts which warrant the legal deduction of reasonable care on the part of the defendant; and without that deduction the case was one for the jury. A careful examination of the testimony will fail to disclose the data for such a legal inference.

Some of the defendant's requests of the court to charge were made on the theory that experience had justified the defendant's mode of loading and carrying the lumber; that, as a matter of law, there was no negligence or want of skill in the mode. If that supposition were correct, it would have been the duty of the court to charge that the plaintiff must establish some chance defect in the car, or some omission of a specific duty,—some special defect of thing or process,-which reasonable care would have detected. But, as I look at the evidence, the question is the ordinary one whether the means and appliances used by the defendant were reasonably prudent, having regard to its duty towards its servants. The defendant's counsel requested the court to charge that "unless the jury believe that, in the exercise of ordinary care, the defendant could have foreseen that this accident would probably happen by loading the cars in the manner in which they did, they must find for the defendant." The court declined to change his charge. In this I think he did no wrong to the defendant. A bare, isolated request, though containing a correct proposition of law, the request seeming to purport something different from the instructions already given, may sometimes mislead a jury, and may be refused when the charge has substantially covered the case made by the evidence. Literally, the request was that the defendant must have been able to foresee this particular accident. The court, as it seems to me, had already given the instruction. The court stated with great particula ity all the facts, and submitted the question to the jury whether the "defendant disregarded what would be reasonably suggested to the mind of an ordinary prudent person in the manner and method in which this lumber was loaded;" and the court further said to the jury that if the accident "was not within the reasonable contemplation of the defendant,-if it happened, under these circumstances, after the defendant had exercised such a degree of caution and prudence to prevent such accident, then the defendant becomes relieved from

liability, and your verdict should be for the defendant." If I am right in the conclusion that the facts proved would not warrant a legal inference that the defendant was free from negligence, because experience had not established the safety of its mode of loading and moving the lumber, then the charge of the court was as favorable to the defendant as could be asked, and its refusal to charge the requests was not error. The plaintiff should have judgment on the verdict, with costs.

TITUS, J., concurs.

HATCH, J., does not sit in this case.

COATES et al. v. HARVEY et al.

(Superior Court of Buffalo, General Term. June 29, 1888.)

1. SALE-WARRANTY-WHAT CONSTITUTES CONTRACT.

Where plaintiff sues for a breach of warranty that certain onion seed sold was "Yellow Danvers," and defendant claims that a notice on the packages and billheads, which defendant saw, relieves him from the warranty, a charge that, if this notice formed part of the contract, plaintiff could not recover, is proper.

2. SAME-WARRANTY-CUSTOM OF THE Trade.

Testimony as to the custom of the trade in warranting seeds is not competent to change either the contract of the parties or settled rules of law.

8. TRIAL-INSTRUCTIONS-REQUEST TO CHARGE.

Where the court fully charges on the questions raised by defendant's request to instruct, he is not called on to restate the law to the jury.

4. APPEAL-REVIEW-OBJECTIONS NOT RAISED BELOW.

In such a case, where plaintiff is asked what a clerk of defendant, who was sent to examine the crop, said afterwards, and states, without objection, what he stated before seeing it, and that afterwards he asked what the damage was likely to be, the portion of the answer responsive to the question is immaterial, and the rest of the answer cannot now be objected to.

Appeal from trial term; HATCH, Judge.

James J. Coates and another sued Horace J. Harvey and another to recover damages for a breach of warranty in the sale of two pounds of onion seed. Verdict for plaintiffs, and defendants appeal.

George Wing, for plaintiffs. Frank R. Perkins, for defendants.

TITUS, J. This cause was originally tried before Judge SMITH, who took from the consideration of the jury every question except the one of damages. The verdict of the jury was set aside by the general term of this court, on the ground that whether the transaction at the time of the sale of the seed to the plaintiffs, as related by the witnesses, taken in connection with the printed notices, was a warranty that the seed was of the variety named, was a question of fact for the jury, and the trial court should have submitted it, instead of taking it from the jury. 10 N. Y. St. Rep. 276. On the last trial the whole case was submitted to the jury, and the verdict is in effect a finding that there was an express warranty that the seed was Yellow Danver onion seed. We must adhere to our former decision that it is a question for the jury to determine; and unless the court, in the trial of the case, committed some error, the verdict of the jury must stand.

The first exception taken by the defendants' counsel relates to the offer of the defendants to show the general custom among seed-dealers that they do not warrant seeds sold. After the defendant Harvey had testified that it had not been their custom to warrant seeds sold by them, he was asked whether this custom was not the general custom among seed-dealers. The court ruled out the evidence, and the defendants excepted to the ruling. The object of proving a general custom is to charge the purchaser with notice that he is dealing with the seller with such custom in view, and that it enters into and forms a part of the contract, in the absence of an express warranty; but the parties are competent to enter into a contract, and make such stipulations

as to quality and variety of articles sold, as they may think proper, and no general custom will affect or alter such a contract. The plaintiffs claim to recover damages on the theory that the defendants, when they sold the seed to them, warranted, not only that they would grow, but that they were Yellow Danver onion seed. The defendants, on the contrary, while not greatly differing from the plaintiffs as to what occurred at the time of the sale, claim that the printed notices which were put on the packages and bill-heads, and which the defendants had before seen, became a part of the contract of sale, and relieved them of the effect of the general rule that to sell articles by a descriptive character or designation is a warranty that the article sold is of such quality or character. This question was fairly submitted to the jury by the court. The judge charged the jury that, if these notices formed part of the contract of sale to the plaintiffs, they could not recover, but the defendants were entitled to a verdict. The jury, under this instruction, found in favor of the plaintiffs, and must have found that the notices did not form part of the contract. The jury was properly instructed on the law applicable to the This being so, the general custom among dealers was not material, and could have no bearing upon either the plaintiffs' or defendants' theory of the case. It certainly was not competent, by proof of such a custom, to change either the contract of the parties, or to set aside established rules of law. Bank v. Bank, 91 N. Y. 74. This case was to be determined by the contract of the parties as they had themselves made it, as evidenced by what occurred when the seed was bought.

case.

While the onions were being harvested, Mr. Manly, a clerk in the employ of the defendants, was sent by them to the plaintiffs' premises to examine the crop. The witness Smith, who was called for the plaintiffs, testified that he went out with Manly to look at the onions, and had some conversation with him. He was asked to give the conversation he had with Manly after he had finished looking at them. This was objected to, and the court ruled that the witness might answer. He then gave a conversation had with Manly before he looked at the onions. This was not responsive to the plaintiffs' question, and no objection was made to the answer. The only portion of the witness' statement that was responsive to the question was that, while coming down the road, he said: “What would be likely to be the damage of these onions, what they would have been if they had been Yellow Danvers?" Independently of the fact that he was the agent of the defendants to make the examination, it does not seem that this portion of the answer was at all material, or bore upon the main question in the case, or could have in any way affected the verdict; and that portion of the answer not responsive to the question cannot now be objected to. The court fully instructed the jury on the question raised by the defendants' counsel's request to charge, and was not called upon to restate the law to the jury. The defendants have no reason to complain of the charge, as it was as favorable to them as the evidence warranted. The order appealed from must be affirmed, with costs.

HATCH, J., did not sit in this case.

PALEN et al. v. HAAKE.

(Superior Court of Buffalo, General Term. July 13, 1888.) SALE-DELIVERY-REASONABLE TIME.

On October 19th, defendant informed plaintiffs that a car of coal which he had ordered from the latter more than a month before, for delivery at a certain place, had not arrived, and directed them to send it. On the 26th, plaintiffs shipped the coal. It did not arrive, and in the middle of November defendant again informed plaintiffs of its non-arrival, and told them to send it. Defendant testified that it

took from two to three weeks to get the coal from the time the order was given. The coal arrived December 2d, when defendant refused to receive it. Held, that the delivery was made in a reasonable time.1 HATCH, J., dissenting.

Appeal from municipal court.

Action by Robert Palen and another against Frederick Haake for the price of a car-load of coal. Verdict and judgment for plaintiffs, and defendant appeals.

Frank R. Perkins, for appellant. F. M. Inglehart, for respondents.

TITUS, J. The defendant appeals from a judgment of the municipal court for $50.38, for a car of coal claimed to have been sold and delivered to the defendant by the plaintiffs. It appears from the evidence that on the 5th day of September, 1887, the defendant bought three cars of lump coal of the plaintiffs, at $2.50 per ton, to be delivered on the Gilbert switch. Two cars of the coal were delivered on the 19th day of October, 1887 but the third car does not appear to have been delivered at that time. This is the load which is now in dispute, and was worth $45.38. This car of coal was not actually delivered at the Gilbert switch until on or about the 2d day of December. It is now claimed by the defendant that the judgment is erroneous, and that he was not obliged to accept the coal at the time it was delivered, for the reason that it was not, as he claims, delivered in a reasonable time after the purchase. The plaintiff Burns testifies: "I ordered the cars to the switch. I sent the order down to the railroad to deliver the cars to the switch. I sent the invoice of the cars to the defendant, September 7, 1887. For some reason the cars were not delivered at the switch on time. About September 10th the defendant came to our office, and said he would have to have some coal, and we gave him a car, and one load of Run of Mines' coal from the Smith-Street yard. We told him (the defendant) we would get three others to take their place. About October 19, 1887, we delivered two cars on the order, and sent the bill, and on the 26th we delivered the third car, which is the one in dispute. We didn't hear anything from him, and supposed, until some time in October, that he had received the three cars we had first billed to him." The witness further says that "on the 19th of October he and his partner drove out to defendant's place. He then said that the third car hadn't yet come; that he had burned that kiln, but could use the other car; and we should let it come along." That on the 26th day of October he ordered the Erie Railroad Company to deliver the coal, and he at the same time sent the defendant an invoice of the car. A week or two after this, the defendant told him the coal had not been delivered at the switch. That he made no further complaint about the non-delivery of this coal. The plaintiff Palen says, in substance, that "he went with Burns, about the middle of November, to see defendant, and collect the bill; that the defendant said he would pay the following Wednesday. He stated that he hadn't received the last car of lump coal, invoice 2, but that he would get it as soon as it was placed where he wanted it; that it was not on the Gilbert switch, but was in the neighborhood, on some other switch. He said he would take it when it was placed on the Gilbert switch. He said he was not in need of the coal then, but we should send the car along, and he would take it anyway. He said nothing about sending it within a day or two." The plaintiffs then called Ryan and McGuire, men who were in the employ of the railroad company, to show they had ordered the coal, and that the coal had been delivered. This is substantially all the testimony offered by the plaintiffs upon the question of the sale and delivery of the coal, and it seems to me that the facts are sufficient to justify the court below in

As to the time of delivery in sales of chattels, see Cunningham v. Judson, (N. Y.) 2 N. E. Rep. 915, and note. A stipulation, in a contract of sale, to ship goods at a certain time, is a condition precedent, a failure to perform which releases the buyer from all liability. Salmon v. Boykin, (Md.) 7 Atl. Rep. 701, and note.

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