DAVIES, J.
It is conceded that there was unreasonable delay on the part of the defendant in the carriage of the goods from the city of New York to the city of Albany. The eighty-four cases were delivered together on the 27th of January, and it was the duty of the defendant to transport or forward the same without unnecessary delay. If they had all been forwarded together, the whole would have reached Louisville about the time that those five cases reached the city of Albany. Then it is also conceded that the goods were injured by an act of God, which ordinarily would excuse the carrier. The law, upon well known motives of policy, has determined that a carrier shall be responsible for the loss or injury to property entrusted to him for transportation, though no actual negligence exist, unless it, the loss or injury, happen in consequence of the act of God, or the public enemy. ( Wibert v. The New York Erie Railroad Company, 2 Kernan, 245.) The defendant seeks to avail himself of this well recognized rule of law to relieve himself from liability in the present action; and there would be no question that it would be adequate for such purpose if the defendant had been free from fault himself, and if his negligence had not contributed to the injury complained of. It is a well settled rule that, when the law creates a duty or charge, and the party is disabled from performing it, without any default in himself, and has no remedy over, the law will excuse him. ( Harmony v. Bingham, 2 Kern. 99.) It is to be observed that the foundation of this exemption is, that the party claiming the benefit and application of it must be without fault on his part. If these goods, therefore, had been forwarded from New York to Albany with reasonable diligence, and the injury had happened to them, as it did. by an act of God, then the defendant would have been excused and exempted from liability for the damages to the goods so entrusted to him. This principle or distinction is fully recognized by abundant authority, and is founded alike upon sound sense and good morals. In Davis v. Garrett (6 Bing. 716), the plaintiff put on board the defendant's barge, lime, to be conveyed from the Medway to London. The master of the barge deviated unnecessarily from the usual course, and, during the deviation, a tempest wetted the lime, and, the barge taking fire thereby, the whole was lost. The defendant claimed that, the lime having been destroyed by the act of God, he was exempt from all liability for its loss. But the court thought otherwise; and TINDAL, C.J., in delivering the opinion, observed that no wrong-doer can be allowed to apportion or qualify his own wrong; and that, as a loss had actually happened whilst his wrongful act was in operation and force, and which was attributable to his wrongful act, he could not set up, as an answer to the action, the bare possibility of a loss if his wrongful act had never been done. It might admit of a different construction if he could show not only that the same loss might have happened, but that it must have happened if the act complained of had not been done. There is no evidence of this character in the present case, nor any suggestion that the injury in the present instance would have occurred if the goods had been sent forward without any unreasonable delay. It is apparent that if they had been they would not have been injured in the particular manner they were. If the five cases injured had gone on with the other seventy-nine cases, and no reason is suggested why they could not, it is reasonable to assume they would have reached their ultimate destination without injury.
In the case of Buson v. The Charleston Steamboat Co. (1 Harp. 262), where goods were laden on board a steamboat which grounded from the reflux of the tide, in consequence of which she fell over, and the bilge water rose into the cabin and injured a box of books belonging to the plaintiff, the defendants were held liable for the loss. The court regarded the defendants as guilty of negligence, in not selecting a proper place for the grounding of the vessel, and in not removing the books when the water came into the cabin, and said that the injury was not an unavoidable consequence of the grounding, but the consequence of negligence in grounding. So also, in Campbell v. Muse, (1 Harp. 468.) The wagon of the defendant, in which he was carrying goods for hire, stuck fast in fording a creek, and the water rising suddenly damaged the goods, it was held that the defendant was liable for the damages so occasioned. The court say, that it is manifest that if the defendant had gone through the creek, without stopping, no injury would have resulted; his halting there, and not the rise in the creek was the cause of injury, and if such circumstance were to operate as a relief from liability, the carriers of this description would be always exempted. In Bell v. Reed, (4 Binney, 127,) the supreme court of Penn. held that a carrier's vessel must be seaworthy, or he must answer for the loss or injury to goods carried in her, although the loss does not proceed from the unseaworthiness. Hart v. Allen (2 Watts, 114), contains a very critical review of the case in 4 Binney, and GIBSON, Ch. J., says, that it was held in that case, that to render a carrier liable for an act of Providence, it is necessary that his own carelessness should have co-operated with it to precipitate the event. And in this latter case, it was held that the first inquiry was, to test the liability of the carrier whether the captain and crew of the vessel carrying the goods had competent skill and ability to navigate the vessel; and if they had not, whether the want of it contributed in any degree to the actual disaster. In Hand v. Boynes (4 Whar. 204), the carrier was held liable for loss of goods, caused by an act of God, on the ground that he had deviated from the direct and usual route, and was therefore in fault at the time the injury happened.
In Williams v. Grant, ( 1 Conn. Rep. 487), SWIFT Ch. J. thus clearly defines the rule of law applicable to a case of this kind. He says: "Under the term act of God are comprehended all misfortunes and accidents arising from inevitable necessity which human prudence could not foresee or prevent; and in cases of this description, carriers may be liable for a loss arising from an inevitable necessity existing at the time of the loss, if they had been guilty of a previous negligence or misconduct by which the loss may have been occasioned." GOULD, J., said: "It is a condition precedent to the exoneration of the carriers, that they should have been in no default, or in other words, that the goods of the bailee should not have been exposed to the peril or accident which occasioned the loss, by their own misconduct, neglect or ignorance. For though the immediate or proximate cause of a loss, in any given instance, may have been what is termed the act of God, or inevitable accident, yet if the carrier unnecessarily exposes the property to such accident, by any culpable act or omission of his own, he is not excused." Crosby v. Fitch ( 12 Conn. 410), holds the same doctrine. These cases therefore clearly establish the rule that the carrier cannot avail himself of the exception to his liability which the law has created, unless he has been free from negligence or fault himself. The policy of the law is to hold carriers to a strict liability; and this policy for wise and just purposes ought not to be departed from. But when the injury occurs from a cause which the carrier could not guard against nor protect himself from, in such an event the law excuses him, but it only does it when he himself is not in fault and is free from all negligence.
There are two cases which seem to maintain a contrary doctrine and which will now be adverted to. One is that of Morrison v. Davis (20 Penn. R. 171). In that case goods were carried in a canal boat on the Pennsylvania canal, and were injured by the wrecking of the boat caused by an extraordinary flood, and it was held that the carriers were not rendered liable merely by the fact that when the boat was started on its voyage one of the horses attached to it was lame, and that in consequence thereof such delay occurred as prevented the boat from passing the place where the accident happened, beyond which place it would have been safe, and the general proposition was decided that carriers are answerable for the ordinary and proximate consequences of their negligence, and not for those which are remote and extraordinary. The court in its opinion assumed that the immediate cause had the character of an inevitable accident, but that this cause could not have affected the boat had it not been for the remote fault of starting with a lame horse. And the general rule was declared to be that a man is answerable for the consequences of a fault only so far as the same are natural and proximate, and as may on this account be foreseen by ordinary forecast, and not for those which arise from a conjunction of the faults with other circumstances that are of an extraordinary nature, and it was held that the true measure of liability was indicated by the maxim, causa proxima, non remota spectatur.
The other case is that of Denny v. New York Central Railroad Company (13 Gray, 481), where it was held that the proprietors of a railroad, who negligently delayed the transportation of goods delivered to them as common carriers, and then to transport them safely to their destination, are not responsible for injuries to the goods by a flood while in their depot at that place, although the goods would not have been exposed to such injury but for the delay. The jury found specially that the defendants were wanting in that degree of care and diligence which the law required of them in seasonably transporting the plaintiff's wool from the Suspension Bridge to Albany, and that the wool was injured by reason of the want of such care and diligence, and that the defendants were wanting in that degree of care which the law required of them in attempting to save the plaintiff's wool from the injury which it received at the place where it was deposited by them on its arrival at Albany. In the opinion of the court the case was considered only upon the first finding, the verdict of the jury upon the second having been set aside as against the weight of evidence. And the court held the jury only to affirm that the defendants failed to exercise due care and diligence in the prompt and seasonable transportation of the wool, and that by reason of this failure, and the consequent detention of the wool at Syracuse, it was injured by the rise of the water in the Hudson, and thereby sustained damages to which it would not have been exposed if it had arrived at Albany as soon as it should have done, because in that event it would have been taken away from the defendants' freight depot and carried forward to Boston before the occurrence of the flood. The decision was put in the case upon the ground that the defendants were responsible only for the proximate and not for the remote consequences of their actions. And the court, arriving at the conclusion that the defendants were not liable, placed much stress upon the fact that the duty of the defendants, as carriers, had terminated at the time the injury happened. They had made the delivery required of them, and they were sought to be charged because they had not made it earlier. At the time of the flood, therefore, they were not in charge of the wool as common carriers. All their duties and responsibilities as such had ceased, except that they were liable for such damages as the owners had sustained by reason of their delay in the delivery of it. The court say that the rise in the waters of the Hudson, which did the mischief to the wool, occurred at a period subsequent to this, that is, the termination of their duty as carriers, and consequently was the direct and proximate cause to which that mischief is to be attributed. The negligence of the defendants was remote; it had ceased to operate as an active, efficient and prevailing cause as soon as the wool had been carried on beyond Syracuse, and could not, therefore, subject them to responsibility for an injury to the plaintiff's property resulting from a subsequent inevitable accident which was the proximate cause by which it was produced.
In the case at bar, the property was yet in the custody, care and control of the carrier. His duty in relation to it had been only in part performed, and although the injury would not, doubtless, have happened but for the negligence of the defendant, yet it can hardly be said that such negligence was so remote that it did not contribute to the injury. A similar objection was urged in the case of Davis v. Garrett ( supra), where it was urged that there was no natural or necessary connection between the wrong of the master in taking the barge out of its proper course and the loss itself, for that the same loss might have been occasioned by the very same tempest if the barge had proceeded in her direct course. But the court held the objection untenable, and said the same answer might be attempted to an action against a defendant who had by mistake forwarded a parcel by the wrong conveyance and a loss had thereby ensued, and yet the defendant in that case would undoubtedly be liable. These cases in Pennsylvania and Massachusetts would seem to establish the exemption of the defendant from liability in the present action. If they are to be regarded as holding that doctrine they are certainly in conflict with numerous adjudged cases, and would greatly relax the rules as to the responsibility of common carriers, and in this state, where with one exception, these rules have been rigidly adhered to, they ought not to be followed. When the carrier is entrusted with goods, and they are injured or lost on the transit, the law holds him responsible for the injury. He is only exempted, by showing that the injury was caused by an act of God or of the public enemy. And to avail himself, of such exemption, he must show that he was free from fault at the time. In the language of the superior court, "a common carrier, in order to claim exemption from liability for damage done to goods in his hands in course of transportation, though injured by what is deemed the act of God, must be without fault himself; his act or neglect must not concur and contribute to the injury. If he departs from the line of duty and violates his contract, and while thus in fault, and in consequence of the fault, the goods are injured, by the act of God, which would not otherwise have caused the injury, he is not protected." For these reasons I am of the opinion, that the judgment of the superior court should be affirmed.
JOHNSON, J., was for reversal. All the other judges being for affirmance, judgment affirmed.
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