N. Y. Rep.] Opinion of the Court, per WILLARD BARTLETT, J.

of the intervention of an act of God “in that a sudden snow storm occurred about as the shipment began and continued with violence that night so as to impede the travel of the train, thus causing the delay." This defense was amply supported by testimony which was held to be sufficient in point of law to excuse the defendant for the delay in transportation. In Jones v. Minneapolis & St. Louis R. R. Co. (91 Minn. 229) the plaintiff had delivered to the defendant a lot of cattle for transportation on a freight train, but before the freight train reached its destination it was caught in a blizzard and became snow-bound so that the cattle froze to death. The Supreme Court of Minnesota held that the loss was due proximately to the storm, which was an act of God; and that when the intervention of such an overpowering cause was established the burden was upon the opposite party to show that the negligence of the carrier had in some manner concurred in or contributed to the loss.

The foregoing cases relate to acts of God in their effect upon the liability of carriers of goods. We are concerned here, however, not with the destruction of property but with the delay of a passenger. Even in respect to goods, a common carrier is not an insurer as to time. While he is responsible for the safety and final delivery thereof and the general rule is that nothing can exonerate him from that responsibility but the act of God or the public enemy, he is responsible only for the exercise of due diligence in regard to the time of delivery. (Parsons v. Hardy, 14 Wend. 215.) So in respect to passengers, a common carrier is not an insurer as to the time when passengers will reach their destination, in the absence of an express contract on the subject. (Gordon v. M. & L. Railroad, 52 N. H. 596, 599, and cases therein cited.) If a railroad company negligently fails to keep the time it promises, it will be liable in damages for injury thereby accruing to a passenger. “ But to entitle the plaintiff to recover there must be proof of negligence. Neither time table nor advertisement is a warranty of punctuality." (Wharton on Negligence, § 662.) A railroad company which receives a person upon a train as a pas

Opinion of the Court, per WILLARD BARTLETT, J. [Vol. 196. senger to a specified destination is bound to carry the person to that destination with all reasonable diligence. (Weed v. Panama R. R. Co., 17 N. Y. 362.) As was said by the Supreme Court of New Hampshire in Gordon v. Railroad (supra): "By the common law, common carriers of passengers are bound to use due care and skill to transport passengers safely and promptly; but they are not insurers of results; they are not held liable as absolute warrantors of safety or speed. * * * The importance of punctuality is undeniable but so is the importance of safety. The serious results of failure in either respect may be weighed in determining whether the carriers have used due care and skill; but the importance of success does not furnish conclusive evidence that the company have absolutely guaranteed against failure."

In the case at bar the time table of the defendant was not put in evidence, but the complaint alleges and the answer does not deny that the train upon which the plaintiff took passage at Quincy was due in Boston at about 8:55 o'clock the same evening. We may assume that this was the advertised hour of arrival appearing in the defendant's time table. Such publication imposes upon the railroad company the obligation to exercise all reasonable care and diligence to make the movements of its trains correspond thereto; but the obligation is not absolute and unconditional. The carrier may be relieved therefrom, if without any negligence on its part the observance of punctuality is prevented by the act of God or inevitable accident. It is the duty of the carrier to exercise reasonable foresight in the anticipation of obstructions to travel; to use all available means for the removal of such obstructions, and to proceed with the transportation as soon as practicable after such removal. (Bowman v. Teall, 23 Wend. 306.) Where all this has been done, the intervention of an act of God or vis major exonerates the carrier from legal liability for the delay.

A case in point is Compton v. Long Island R. R. Co. (1 N. Y. S. R. 554), decided by the General Term of the second department, when Chief Judge CULLEN was a member of that

N. Y. Rep] Opinion of the Court, per WILLARD BARTLETT, J.

court. That was an action to recover damages for the failure of the defendant to transport the plaintiff from Belview station to Flatbush avenue. In reference to the liability of the defendant the General Term said: "The plaintiff had no just cause of action against the defendant in the first instance, as the train which he expected to take was delayed by a washout, which was only discovered that morning, over which it would be dangerous, if not impossible, to pass a train of cars, and it was repaired with promptness. Common carriers cannot be held responsible for delays caused by storms and tempests without the intervention of human agency."

If we apply the rule thus stated to the facts of the present case it is decisive of this appeal. The snow storm which delayed the train in which the plaintiff was a passenger must, under all the authorities, be classed as an act of God. Proof of its occurrence and effect constituted a complete defense to the plaintiff's claim so far as it was based merely on the delay which he sustained. So far as he complained of the dark, cold and uncomfortable condition of the car in which he says he was compelled to spend the night, and the failure of the defendant to mitigate such condition, there was a conflict of evidence on that issue, and the plaintiff would have been entitled to go to the jury if that part of the case had been submitted separately. The charge, however, left the jury at liberty to hold the defendant liable for the delay due to the blizzard, even if they should find that the railroad company had done all that it could reasonably be required to do in the way of ameliorating the plaintiff's surroundings during the period of detention. Under these circumstances justice obviously requires a reversal of the judgment. The defendant's exception was well taken to that portion of the charge which left it to the jury to say whether the storm rendered it impossible for the railroad company to transport the plaintiff to his destination on that evening. The evidence was not such as to permit a negative answer to that question. It was all the other way.

The sole defense in this case is the occurrence of a snow

storm of such severity as to amount to an act of God, and, therefore, I have considered that alone; but I do not wish to be understood as implying that it is only such an event that can constitute a valid excuse in law for the failure of a common carrier to convey passengers promptly. I think that there may be circumstances under which an inevitable accident due solely to human agency, and in no proper sense an act of God, will serve to exonerate the carrier. Suppose, for example, that the train in which the plaintiff was traveling had been stopped all night by the wreck of another train on the same railroad, which wreck was not attributable to any negligence whatever on the part of any one. Such a thing may not be a common occurrence, but it is by no means inconceivable. In the case supposed, the railroad wreck could not be considered an act of God, and yet the resulting obstruction to the movement of other trains ought to exonerate the railroad company from responsibility for their delay in arriving at their respective destinations.

For the reasons which have been given I advise that the judgments be reversed and a new trial ordered, with costs to abide the event.

CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHt, Vann, HISCOCK and CHASE, JJ., concur.

Judgments reversed, etc.

GIOVANNI GUFFANTI, Suing on Behalf of Himself and Other Creditors of FRANCESCO ZANOLINI, Respondent, v. NATIONAL SURETY COMPANY, Appellant, Impleaded with Another.

bond given by agent

Principal and surety — indemnity bonds receiving money for transmission abroad against surety upon agent's default.

This action is brought on a bond given, pursuant to chapter 185 of the Laws of 1907, by a person engaged in selling steamship tickets and receiving deposits of money for transmission to foreign countries, conditioned for the faithful holding and transmission by him of such moneys and the due accounting therefor, which bond was signed by

him and the defendant a surety company. The principal in the bond converted the moneys so received by him from a large number of persons and to an amount in excess of the penalty of the bond. The plaintiff brings this action against the surety company, impleaded with the principal, on behalf of himself and all others similarly interested, to prove their rights to participate in the proceeds of the bond, and to compel defendant to pay over such proceeds pro rata to himself and such other persons as may become parties and exhibit and prove their claims. Held, that as the bond is for the benefit of every person who deposited money with such agent, the court will exercise its equitable powers to prevent the amount of the penalty thereof being paid to some of the persons defra ided to the exclusion of others equally entitled to payment there from, that the facts stated in the complaint constitute a cause of action, and that the action was properly brought by plaintiff on behalf of himself and all others similarly situated. Guffanti v. Nat. Surety Co., 133 App. Div. 610, affirmed.

(Argued October 6, 1909; decided November 23, 1909.)

APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1909, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint.

The following questions were certified:

"1. Does the plaintiff's complaint, upon the face thereof, state facts sufficient to constitute a cause of action?

"2. Should the demurrer of the defendant National Surety Company be sustained upon the ground that the plaintiff cannot maintain this action as a suit in equity for the purpose of enforcing the payment of the amount claimed to be due him?

"3. Should the demurrer of the defendant National Surety Company be sustained upon the ground that the pluintiff cannot maintain this action as a class action on behalf of himself, and all other similarly situated creditors of the defendant Francesco Zanolini?"

The nature of the action and the facts, so far as material, are stated in the opinion.

C. Walter Artz and William J. Griffin for appellant. The surety may question the constitutionality of the bond given by his principal. (16 Ency. Pl. & Pr. 934; Wallace