willfully, wantonly and negligently compelled plaintiff to remain in its said car during the whole of the night of January 2nd, 1904, and until six o'clock on the morning of January 3rd, 1904. The plantiff claimed to recover two thousand dollars damages on account of the detention and his sufferings occasioned by the cold. The answer admitted, by not denying, the allegations of the complaint in regard to the plaintiff's status as a passenger; otherwise it was a general denial. Upon the trial, after the plaintiff had rested, the defendant upon terms was allowed to amend the answer so as to set up as an additional and separate defense "that on the 2nd of January, 1904, and the morning of January 3rd, 1904, at Boston an act of God consisting of a blizzard of an unusually heavy snow storm with high wind and low temperature prevented the defendant from carrying the plaintiff from the place mentioned in the complaint, namely six hundred or seven hundred feet from the South Station to the defendant's terminal at South Station in Boston, and that no negligence of the defendant in any way contributed to the condition of the plaintiff at that time and place set up and mentioned in the complaint." Evidence was introduced in support of this defense, after which a motion was made for the direction of a verdict in favor of the defendant. This motion was denied. The defendant duly excepted and the case was submitted to the jury, who rendered a verdict of fifty dollars in favor of the plaintiff. That judgment has been affirmed by the Appellate Term and the Appellate Division. The record does not show that the affirmance in either instance was unanimous. The case comes to this court under leave granted by the Appellate Division. Charles M. Sheafe, Jr., and William Greenough for appellant. The trial court erred in denying defendant's motions for dismissal of the complaint and for a direction of a verdict for defendant. (Palmer v. R. R. Co., 101 Cal. 187; Gerardy v. R. R. Co., 52 Misc. Rep. 466; Briddon v. R. R. Co., 28 N. Y. Rep.] Opinion of the Court, per WILLARD BARTLETT, J. L. J. Exch. 51; E. T. Co. v. Wallace, 68 Penn. St. 302; Co., 1 N. Y. S. R. 554; Prospert v. Compton v. L. I. R. R. Charles D. Ridgway for respondent. The defendant is estopped from pleading an "act of God" as an excuse for non-performance of its contract to transport plaintiff promptly. (Beebe v. Johnson, 19 Wend. 500; Harmon v. Bingham, 12 N. Y. 99; Booth v. S. D. Rolling Mill, 60 N. Y. 487.) If the defendant could not perform its contract according to its terms, viz., to transport plaintiff to its terminal station promptly in the train on which it received him, the law required it to employ all reasonable care and diligence in providing other available means to take him to the terminal. (Williams v. Vanderbilt, 28 N. Y. 217.) The judgment should be affirmed because the defendant did not employ all reasonable care and diligence in opening up the tracks in its terminal yard upon which there were trains carrying incoming passengers. (McArthur v. Sears, 21 Wend. 190; Merritt v. Earle, 29 N. Y. 115.) WILLARD BARTLETT, J. There is no conflict in the evidence as to the condition of things which prevented the train in which the plaintiff was a passenger from getting into the defendant's station at Boston on the night of the 2nd of January, 1904. The weather was extremely cold- the temperature ranging from six degrees Fahrenheit to zero- and the wind was blowing hard and a heavy snow storm prevailed, of such proportions as to be ordinarily denominated in America a blizzard. The snow fell to the depth of almost a foot on the level and was blown in the railroad yard into drifts three and five feet high. This drifting snow accumulated in the switches, packing in and around the points and other mova ble parts so that the switches could not be operated from the signal tower until the snow was removed. According to one of the witnesses the high wind forming snowdrifts over the switches put everything in the yard "out of commission" about six o'clock in the evening, inasmuch as the entire force Opinion of the Court, per WILLARD BARTLETT, J. [Vol. 196. of men available for the service of the defendant was unable to dig the switches out so as to operate outgoing and incoming trains. As soon as the storm commenced the railroad company hired extra men in addition to twenty-nine men regularly employed in the yard. One hundred and eighty-nine extra men were thus employed in sweeping out the switches by digging around the movable frogs with brooms and shovels. They worked all night and yet it was found impracticable to move any trains in the South Terminal Station of the defendant between about six o'clock on the evening of January 2nd, and about six o'clock on the morning of January 3rd, 1904. During this period about ninety-five trains were scheduled to enter and leave the station. No train due after six o'clock was able to get in. It was further proved that a storm of such a character as has been described is unusual in Boston and that all the switches on the defendant's track were in perfect condition and capable of being operated perfectly if they had not been obstructed by snow and ice. There is some discrepancy as to the precise point where the train from Quincy was stalled — some of the witnesses stating that it was six hundred or seven hundred feet outside the railroad yard and others that it was at or near the Dover street station, about a mile distant. However that may be, there is no doubt that the train was blocked by the blizzard. Nor can there be any doubt on this record that the defendant railway corporation through its servants and agents made strenuous efforts during the night to clear away the obstructions so as to permit the entrance of this train and all other incoming trains into the station. These efforts, as has been seen, were not successful until the next morning. The chief question with which we have to deal in the present case is the effect of an act of God or inevitable accident to relieve a common carrier from his obligation to carry passengers promptly. The defendant pleaded the Boston blizzard of January 2, 1904, as its excuse for delaying the arrival of the plaintiff from 8:55 o'clock in the evening until 6 o'clock the next morning. It denominates the blizzard an N. Y. Rep.] Opinion of the Court, per WILLARD BARTLETT, J. act of God. This phrase has been variously interpreted. Lord MANSFIELD considered an act of God to be "something in opposition to the act of man" and its meaning is most frequently illustrated by reference to lightning and tempests. (Forward v. Pittard, 1 T. R. 27.) Some text writers and judges have deemed the phrase synonymous with inevitable accident while others insist that the terms are not convertible. (See Wharton on Negligence, § 553; McArthur v. Sears, 21 Wend. 190; Merritt v. Earle, 29 N. Y. 115.) There is an extreme subtlety in some of the suggestions in support of a differentiation, as in Blythe v. Denver & Rio Grande R. Co. (15 Colo. 333) where it is insisted that there is a legal distinction between an inevitable accident and an act of God. In that case a gale of wind blew a railroad train from the track and overturned a stove or lamp in one of the cars, which set fire to a package of gold and silver watches belonging to the plaintiff. The court said that the immediate resulting cause producing the loss was the fire which might properly be termed an inevitable accident growing out of the former disaster; while the direct cause of the agency that worked the destruction was the gale of wind which was an act of God putting the agent at work. Whether, however, the terms "act of God" and "inevitable accident" are convertible or not, the snow storm which obstructed the defendant's train in the present case was clearly an act of God within the meaning of that phrase in the rule of law which has made it most familiar; that is, the rule that a common carrier of goods is an insurer against all risks except those caused by the act of God or the public enemy. The act of God is most frequently interposed as a defense in suits seeking to charge common carriers with the partial or total loss of goods; and in such cases the following natural causes among others have been held to be acts of God: Heavy snow storms, unprecedented or unusual and extraordinary freshets or floods, severe wind storms, washouts and earthquakes. The cases are numerous in which a snow storm has been held to be an act of God which will relieve a common carrier Opinion of the Court, per WILLARD BARTLETT, J. [Vol. 196. of goods. It will suffice to refer to a few of the typical decisions to this effect. In Black v. Chicago, Burl. & Quincy R. Co. (30 Neb. 197) the witnesses characterized the snow storm as a blizzard, and an unprecedented snow storm of such violence as to obstruct the movement of trains was declared to fall within the term "act of God." It was further said that while com. mon carriers are not insurers against loss occasioned by an act of God, they are required, upon the intervention of an act of God, to exercise ordinary and reasonable care and diligence to protect the property which they have undertaken to transport against any loss or damage. In Feinberg v. D., L. & W. R. R. Co. (52 N. J. Law, 451) the great blizzard of March 12, 1888, was held to be "undoubtedly the act of God" or an inevitable accident not anticipated or within the control of the railroad company. In Ballentine v. North Missouri R. R. Co. (40 Mo. 491) it was held that a carrier is not liable for negligence if he be prevented from performing his duty by an act of God, and that a snow storm which blocks up a railroad to such an extent as to hinder and delay the running of cars is such an act. In Pruitt v. Hannibal & St. Joseph R. R. Co. (62 Mo. 527), which was an action for damages alleged to have been occasioned by the defendant's negligence and breach of contract as a common carrier, the principal defense relied upon to excuse the failure promptly to transport the plaintiff's property was the occurrence of a remarkable and unprecedented snow storm which stopped the trains from ten to fifteen days. The court expressed the opinion that a violent snow storm or excessively cold weather could hardly be regarded as an extraordinary event in the latitude of the defendant's railroad in North Missouri during the months of December and January, but nevertheless held that such storms when of sufficient violence or duration to obstruct the passage of trains must be allowed to excuse delays so long as the obstructions continued. In Cunningham v. Wabash R. R. Co. (79 Mo. App. 524) the delay of the carrier was sought to be excused by reason |