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Parties - bailment transfer of title plaintiffs in defendant's warehouse, which - injury to property.

resulted in verdicts for plaintiffs. Over5. One who has sold and received payment ruled. for goods deposited in a warehouse and

The facts are stated in the opinion. identified so that the title has passed cannot hold the warehouseman liable for negligent

Messrs. David A. Ellis and S. M. Whal. ly permitting the property to be injured.

en, for plaintiffs :

The tide was not an "act of God," as a (February 27, 1915.)

matter of law, on the facts which the jury

might find in the plaintiffs' favor. XCEPTIONS by plaintiffs and defend

Poole v. Boston & M. R. Co. 216 Mass. ant to rulings of the Superior Court for 12, 102 N. E. 918; Ayers v. Ratshesky, 213 Suffolk County made during the trial of Mass. 589, 101 N. E. 78; Bourne v. Whitactions brought to recover damages for man, 209 Mass. 155, 35 L.R.A. (N.S.) 701, injury by salt water to wool stored by 1 95 N. E. 404, 2 N. C. C. A. 318. Transp. Co. v. Story, 50 Md. 4, 33 Am. Rep., that defendants were not liable for the dam293.

age, where it appeared that their storehouse But when a warehouseman uses ordinary and wharf were as high as any others; that care to anticipate danger to goods stored the water had never before risen so high as with him, or to prevent damage to them upon the occason of the loss; that had the after the danger becomes apparent, he will salt been placed in the storehouse instead not be held liable.

on the wharf, the damage would have been Thus, while warehousemen are not bound about the same, and that the rise was so to keep on hand special facilities to meet sudden that it did not appear that the salt and overcome possible, but unexpected and could have been saved. Knapp v. Curtis, 9 unprecedented, emergencies, which are in Wend. 60. cluded in what we called the act of God, And where, because of an unprecedented such as an unprecedented flood, they are re- rainfall and the condition of the street, the quired, if imminent danger presents itself, ordinary sewers were unable to carry away to use such appliances and means as the the water, and it flowed across the ordinary safe conduct of their business re- walk and into defendant's basement damquires them to possess, and such as are at aging plaintiff's trunk which was · stored hand, and to use them with promptness such there, it was held that defendant was not as would be expected of ordinarily careful bound to foresee this chain of circumstances, and prudent men in regard to their own and would be liable only if he failed to take property or property intrusted to their care reasonable care to protect the trunk after it under like circumstances. And if, after rea became evident that the rainfall could not sonable information of danger, the ware be carried away in the usual channels; and housemen promptly commenced the removal where he commenced to remove the trunks of seed from the first to the second floor, which were stored in the basement as soon and did so as rapidly as reasonably could as the danger became apparent, but plainbe done under the circumstances, and the tiff's trunk was damaged before all the flood came suddenly before all could be so trunks could be removed, defendant could removed, they would not be guilty of negli- not be held liable for negligence because he gence as to that part not removed. Backus failed to provide in advance means by which v. Start, 13 Fed. 69.

they could be removed more quickly. MurSo, an unprecedented high stage of water ray v. Hayes, 151 N. Y. Supp. in the Mississippi river, which caused the In Powers v. Mitchell, 3 Hill, 545, where ground upon which defendant's warehouse plaintiff's goods were destroyed while in dewas built to soften, permitting the founda- fendant's warehouse by a sudden freshet tion to sink and letting plaintiff's malt which which caused the water of the river to rise was stored in the warehouse into the water and flow into the room where they were dein the basement, so that some of it was deposited, it was held that defendant was not stroyed and the remainder damaged, was an liable for their loss, inasmuch as every exeract of God, and defendant could not be held tion was made by men in his employ to save to respond for the value of the malt received them from the water, although the fact that by it unless it appeared from the evidence the goods were totally destroyed by the that defendant was guilty of negligence di- water was held not to relieve the warerectly contributing to the loss or damage; houseman from liability for damage to the and where, although it knew that water goods prior the the flood by his negligently was accumulating in the cellar, it had no permitting oil to drip on them. reason to expect the collapse of the build- In connection with the defense of act of ing until it was too late to remove the God considered in some of the cases above goods, it was held that it was not liable. cited, the reader may profitably consult the American Brewing Asso. v. Talbert, 141 Mo. Index to L.R.A. Notes, under the titles “Aet 674, 64 Am. St. Rep. 538, 42 S. W. 679. of God” and “Carriers," § 111. And see

Likewise, where salt store on defendants' especially no in 29 L.R.A.(N.S.) 671, as wharf was damaged by water due to a rise to duty of carrier where act of God has ocof the water at that point because of a vio- curred or is threatened.

R. L. S. lent windstorm 'on Lake Erie, it was held

In judging whether a person has or has | L. J. C. P. N. S. 161, 11 Reports, 517, not exercised due care, the law sets em- 72 L. T. N. S. 785, 44 Week. Rep. 157; phasis “especially" upon "the degree of care Brown v. Hitchcock, 28 Vt. 452. which other persons engaged in similar Mr. Thomas Hunt, with Messrs. Gaston, business in the vicinity were in the habit Snow, & Saltonstall, for defendant: of bestowing on property similarly situ- The only obligation of the defendant was ated."

to exercise ordinary care with reference Cass v. Boston & L. R. Co. 14 Allen, 448; to the wool. Maynard v. Buck, 100 Mass. 40, 1 Am. Neg. Murray V. International S. S. Co. 170 Cas. 901; Canadian Northern R. Co. v. Mass. 166, 64 Am. St. Rep. 290, 48 N. E. Senske, 120 C. C. A. 65, 201 Fed. 637; 1093; Willett v. Rich, 142 Mass. 356, 56 Chicago G. W. R. Co. v. Minneapolis, St. Am. Rep. 684, 7 N. E. 776; Sullivan v. P. & S. Ste. M. R. Co. 100 C. C. A. 41, Scripture, 3 Allen, 564; Maynard v. Buck, 176 Fed. 237, 20 Ann. Cas. 1200; 26 Har- 100 Mass. 40, 1 Am. Neg. Cas. 901; Keith v. vard L. Rev. 760, note.

Worcester & B. Valley Street R. Co. 196 When a high tide occurs, under the oper. Mass. 478, 14 L.R.A.(N.S.) 648, 82 N. E. 680. ation of natural and well-comprehended There was no evidence here to warrant laws, it seems as if that should be a dis- a finding that a failure to store at a height tinct precedent.

greater than 15.60 feet above "Boston city Nitro-Phosphate & 0. Chemical Manure base” was a failure to exercise ordinary Co. v. London & St. K. Docks Co. L. R. 9 care. Ch. Div. 503, 39 L. T. N. S. 433, 27 Week. Fair v. Manhattan Ins. Co. 112 Mass. 320; Rep. 267, 1 Eng. Rul. Cas. 276; Pitts. Emerson v. Patch, 129 Mass. 299; Newell burg, Ft. W. & C. R. Co. v. Gilleland, 56 v. Chesley, 122 Mass. 525; Peru Steel & Pa. 445, 94 Am. Dec. 98; Cowles v. Pointer, 1. Co. v. Whipple File & Steel Mfg. Co. 26 Miss. 253; Great Western R. Co. v. 109 Mass. 464; Blackington v. Johnson, Braid, 1 Moore P. C. C. N. S. 101; Bra- 126 Mass. 21; Hamilton v. Boston Port bant v. King (1895] A. C. 632, 64 L. J. C. & Seamen's Aid Soc. 126 Mass. 407; LivP. N. S. 161, 11 Reports, 517, 72 L. T. N. S. ingston v. Hammond, 162 Mass. 375, 38 785, 44 Week. Rep. 157; Carney v. Caraquet N. E. 968; Wirth v. Kuehn, 191 Mass. 51, R. Co. 29 N. B. 425.

77 N. E. 647. Even if the top of the tide was an "act The facts do not warrant a finding of of God,” the defendant was not entitled to negligence on the part of the defendant. a verdict.

Blyth v. Birmingham Waterworks Co. 11 Nitro-Phosphate & 0. Chemical Manure Exch. 781, 25 L. J. Exch. N. S. 212, 2 Jur. Co. v. London & St. K. Docks Co. L. R. 9 N. S. 333, 4 Week. Rep. 294, 18 Eng. Rul. Ch. Div. 503, 39 L. T. N. S. 433, 27 Week. Cas. 621; Pearce v. The Thomas Newton, Rep. 267, 1 Eng. Rul. Cas. 276; Burt v. 41 Fed. 106; Cowles v. Pointer, 26 Miss. Victoria Graving Do Co. 47 L. T. N. S. 253; Nitro-Phosphate & 0. Chemical Manure 378; Slater v. Mersereau, 64 N. Y. 138; Co. v. London & St. K. Docks Co. L. R. 9 Smith v. Faxon, 156 Mass. 589, 31 N. E. Ch. Div. 503, 39 L. T. N. S. 433, 27 Week. 687; Stone v. Dickinson, 5 Allen, 29, 81 Rep. 267, 1 Eng. Rul. Cas. 276; Pittsburg, Am. Dec. 727; Boston & A. R. Co. v.Ft. W. & C. R. Co. y. Gilleland, 56 Pa. Shanly, 107 Mass. 568; Corey v. Havener, 182 | 445, 94 Am. Dec. 98; Siegfried v. South Mass. 250, 65 N. E. 69, 13 Am. Neg. Rep. Bethlehem, 27 Pa. Super. Ct. Rep. 456; 108; Oulighan v. Butler, 189 Mass. 287, 75 People v. Utica Cement Co. 22 Ill. App. N. E. 726; Flynn v. Butler, 189 Mass. 159; Garfield v. Toronto, 22 Ont. App. Rep. 377, 75 N. E. 730; Feneff v. Boston & M. 128; Palmyra v. Waverly Woolen Co. 99 Me. R. Co. 196 Mass. 575, 82 N. E. 705; Lantin 134, 58 Atl. 674; Cormack v. New York, v. Goodnow, 207 Mass. 291, 93 N. E. 843. N. H. & H. R. Co. 196 N. Y. 442, 24 L.R.A.

Plaintiffs' knowledge and acquiescence, as (N.S.) 1209, 90 N. E. 56, 17 Ann. Cas. 949; such, are immaterial; there must be a con- Jones v. Minneapolis & St. L. R. Co. 91 tract, express or implied, to modify or Minn. 229, 103 Am. St. Rep. 507, 97 N. W. waive the legal incidents of the contract 893, 15 Am. Neg. Rep. 355. of bailment, and knowledge accompanied If the plaintiffs did, with as much knowl. by long acquiescence without objection edge as the defendant had, in fact consent might be evidence of such an agreement, to the wool being stored just where it was but only if the knowledge was a full one stored, they would not be entitled to reof all material facts and circumstances in cover. relation to the situation.

Searle v. Laverick, L. R. 9 Q. B. 122, Conway Bank v. American Exp. Co. 843 L. J. Q. B. N. S. 43, 30 L. T. N. S. 89, Allen, 512; Mooers v. Larry, 15 Gray, 451; | 22 Week. Rep. 367; Knowles v. Atlantic & Brabant v. King (1895] A. C. 632, 64 St. L. R. Co. 38 Me. 55, 61 Am. Dec. 234;

or

Brown v. Hitchcock, 28 Vt. 452; Parker, nature quite beyond the power of man to v. Union Ice & Salt Co. 59 Kan. 626, 68 control. Human agency does not in any Am. St. Rep. 383, 54 Pac. 672.

degree enter into their creation, their flood Certain of the bags of wool stored by or their reflux. In this sense tides always the plaintiff's had been sold by them before are the act of God, for which man is not December 26, 1909, so that they had no responsible. When damages are sought at title to these particular bags of wool at law in such connection, the test of liability the time they were injured, sustained no of a defendant upon whom a duty is cast, damage with respect to them, and cannot is whether the injury caused by the tide therefore recover.

is an inevitable accident due wholly to the Congar v. Galena & C. U. R. Co. 17 Wis. violence of the natural phenomenon, and 477; Evans v. Marlett, 1 Ld. Raym. 271; not referable in any degree to the particiDutton v. Solomonson, 3 Bos. & P. 582, 7 | pation of man by unreasonable failure to Revised Rep. 883; Harrison v. Hixson, 4 anticipate danger, to put forth appropriBlackf. 226; Brown v. Hodgson, 2 Campb. ate preventive measures or protective in37, 4 Taunt. 189; Krulder v. Ellison, 47 strumentalities, to employ rational X. Y. 36, 7 Am. Rep. 402; Thompson v.

means to ward off the probable consequences Fargo, 49 N. Y. 188, 10 Am. Rep. 342; of the event. The human element enters Snee v. Prescott, 1 Atk. 245; Merchants' into damages resulting from a cause like Despatch Co. v. Smith, 76 Ill. 542; United a high tide only in omission seasonably to States Mail Line Co. v. Carrollton Furni- be vigilant to avert the disaster or to mititure Mfg. Co. 101 Ky. 658, 42 S. W. 342; gate its consequences by the use of such Potter v. Lansing, 1 Johns. 215, 3 Am. Dec. expedients and safeguards as reasonably 310; Louisville & N. R. Co. v. Allgood, 113 might be expected under all the circumAla. 163, 20 So. 986; Dawes v. Peck, 8 stances. Through failure in this respect T. R. 330, 3 Esp. 12, 4 Revised Rep. 675; man may concur as a contributing proxiBlum v. Caddo, 1 Woods, 64, Fed. Cas. No. mate cause with the forces of nature. But 1,573; King v. Meredith, 2 Campb. 639. the use of the means to which prudent and

Messrs. F. W. Bacon and o. T. Russell careful persons in the same line of business also for defendant.

ordinarily have recourse is all that can be

required. If, having done this, a defendant Rugg, Ch. J., delivered the opinion of is' overpowered by storm or tide or flood, he the court:

is free from liability. The highest ingenuThese are actions of contract wherein the ity of the intellect is not demanded. plaintiffs seek to recover damages caused Nothing more can be exacted than such by the wetting with salt water of wool wisdom and provision as the ordinary man severally stored by them with the defend would have manifested to avoid a hazard ant, a warehouseman on the water front in or forestall a danger of which some warnBoston. The direct means of the injury ing actually had been given by previous was the tide of December 26, 1909, which experience, or fairly would be disclosed by rose to such height as to come into the the application of sound judgment to an sheds of the defendant, where the wool of observation of general climatic conditions, the plaintiffs was stored, to a depth of prevailing customs, and all available several inches.

sources of information naturally to be reNo question now is made as to the fact sorted to by a reasonable man. Nugent v. of damage. The main contention of the Smith, L. R. 1 C. P. Div. 423, 438, 45 L. J. defendant is that this tide was of such ex- C. P. N. S. 697, 34 L. T. N. S. 827, 24 traordinary character as to amount to an Week. Rep. 237, 3 Asp. Mar. L. Cas. 198, "act of God” within the meaning of that

Eng. Rul. Cas. 216; Nichols v. Marsphrase in the law. In its juridical sense land, L. R. 2 Exch. Div. 1, 46 L. J. Exch. an act of God may be defined as the action N. S. 174, 35 L. T. N. S. 725, 25 Week. of an irresistible physical force not attrib- Rep. 173, 1 Eng. Rul. Cas. 262; Gray v. utable in any degree to the conduct of man, Harris, 107 Mass. 492, 9 Am. Rep. 61; Cork and not in reason preventable by human

V. Blossom, 162 Mass. 330, 332, 26 L.R.A. foresight, strength, or care. Perhaps no 256, 44 Am. St. Rep. 362, 38 N. E. 495. definition could be framed in terms com- The precise point to be determined in the prehensive enough to include every state cases at bar is whether this particular tide of facts, but this is sufficient for the present was of such extraordinary height that the

See The Majestic, 166 U. S. 375, resulting mischief would not have been 386, 41 L. ed. 1039, 1043, 17 Sup. Ct. Rep. guarded against by the prudence, foresight, 597, 2 Am. Neg. Rep. 282, and 1 Corpus care, and skill reasonably to have been exJuris. 1172 et seq., for other definitions. pected of the defendant in the performance, Tides are manifestations of the forces of of its duty as warehouseman.

cases.

The determination must rest upon a height reached by it was 15.6 feet above consideration of all the facts which the de. the arbitrary level in common use in the fendant within reason might have been neighborhood, known as Boston base, which required to know in the careful conduct of was about .64 feet below mean low tide. its business before this particular tide. It This height had been exceeded slightly by cannot be held to the exercise of a degree the tide of 1851, which destroyed Minot's of sagacity which a reasonable warehouse- Ledge Lighthouse. There were also tides man using due caution for the preservation higher than 15 feet in 1830 and in 1847, of goods at the present time deposited with and on seventeen other occasions from 1850 him, in the light of the experience gained to 1905 the tide had risen to 14 feet or from that tide, now would put forth, but more. The tide in question was 3.86 feet would not have thought of practising be- above its predicted height. This was at: fore that event. The legal obligation of tributed to an accompanying severe storm, the defendant was to use the ordinary care low barometer, and a northeast wind of of the man of common prudence in keeping great velocity. None of these three facthe kind of goods deposited with it, in view tors was excessive, and not infrequently of the facts accessible to and likely to be had been equaled. Within the twelve considered and acted upon by a reasonable previous years the tide on four different person before the event complained of. Wil occasions had risen 3 feet or more above lett v. Rich, 142 Mass. 356, 56 Am. Rep. its predicted height, and one tide had 684, 7 N. E. 776; Maynard v. Buck, 100 exceeded its prediction by 4.1 feet, surMass. 40, 47, 1 Am. Neg. Cas. 901; Murray passing in this respect the tide in question v. International S. S. Co. 170 Mass. 166, 64 by almost 2 inches. An increment of this Am. St. Rep. 290, 48 N. E. 1093. This is magnitude on the normal or predicted the same rule put in equivalent words as height of tides appreciably lower than that a requirement to exercise the care of “a of the one here in question would have reasonably careful owner of similar goods” brought the water to the level. in the management of his own concerns, A severe storm, known as the Portland and an exoneration from liability for “loss storm because a steamer of that name was or injury to the goods which could not have lost, occurred in 1898. Its accompanying been avoided by the exercise of such care." tide rose to a height of 14.94 feet, and The warehouse receipt act, pt. 2, § 22 (Stat. water then entered two of the three sheds 1907, chap. 582); Sullivan v. Scripture, 3 of the defendant which were wet by the Allen, 564, 565; Maynard v. Buck, 100 Mass. 1909 tide. The floors of those sheds were 40, 47, 1 Am. Neg. Cas. 901. Stated raised thereafter, but subsequently settled broadly, the principles of law respecting so that, although some parts were higher, liability for damages arising from high there were places in each of the sheds as tides are no different from those which gov- low as 14.10 feet, 14.24 feet, and 14.40 ern liability flowing from different natural feet above Boston base, on December 26, phenomena and the manifold other condi- 1909. These levels were lower than the tions constantly presented in everyday af- recorded heights of several other tides. fairs. The test is whether the due care of The records of tide heights about Boston the reasonable man under all the circum- harbor, including those above mentioned, stances has been exercised.

were available at the city engineer's office, The facts in the cases at bar must be and had been published in his reports for examined to determine whether as matter a number of years, and reference had been of law it could have been found that the made to them in other public records. There defendant failed in the performance of this were several civil engineers in Boston who duty.

had made special study of the subject of There was an auditor's finding in fav- tides, and were prepared to and did advise

of the plaintiff's. Unless the facts numerous persons as to the elevation of stated in the report were not sufficient to structures in order to be secure from damsupport the conclusion, or were so incon- age by tides. sistent in themselves as to neutralize each Considerable testimony was introduced other, or were overcome by other evidence, from experts on tides to the effect that the that was evidence sufficient to warrant a minimum height for storage of wool, in the verdict by the jury in favor of the plain- light of experience and knowledge available tiffs. Fair v. Manhattan Ins. Co. 112 Mass. before the date in question, was 15,6 feet 320, 331; Newell v. Chesley, 122 Mass. 525; above Boston base. The practice of others Fisher v. Doe, 204 Mass. 34, 90 N. E. 592. engaged in the same business as to the

The elemental facts were not very much elevation of storerooms was evidence comin dispute and might have been found to petent to be considered as bearing upon the be as follows: This tide was described by negligence of the defendant. Case v. Bos. witnesses as extraordinarily high. The ton & L. R. Co. 14 Allen, 448; Pitcher V.

or

Old Colony Street R. Co. 196 Mass. 69, | Rep. 507, 97 N. W. 893, 15 Am. Neg. Rep. 13 L.R.A.(N.S.) 481, 124 Am. St. Rep. 513, 355, and like cases, are instances where 81 N. E. 876, 12 Ann. Cas. 886; McCrea human diligence and sagacity were powerv. Beverly Gas & Electric Co. 216 Mass. 495, less in reason to avert the consequences of 498, 104 N. E. 365; Canadian Northern R. the operation of snow or storm or cold. Co. v. Senske, 120 C. C. A. 65, 72, 201 Fed. But they are distinguishable from the 637. Some evidence of this sort showed cases at bar. elevations higher than that maintained by There was much evidence coming both the defendant in its sheds where the plain from the testimony of witnesses and from tiffs' wool was stored.

the fair inferences from other facts which It is apparent from what has been said tended to exonerate the defendant from that the plaintiffs' cases did not rest upon negligence. But we are of opinion on the the bald fact that the tide which caused whole that its weight was for the jury, the damage was the highest for nearly and that it could not have been ruled as sixty years. There were many other cir- matter of law that there was nothing upon cumstances bearing upon the issue. The which to rest a finding of negligence on the subject of high tides was one to which the part of the defendant. The cases are very attention both of experts and of the public close on their facts. Verdicts in favor had been directed to a greater or less ex of the defendant certainly would have been tent. The partial flooding of the defend. warranted. But the jury hardly could ant's own premises in 1898 had called its have been directed that there was no evinotice pointedly to the dangers incident dence of negligence worthy of consideration. to high tides. Reasonable caution might This conclusion is supported by Nitro-Phoshave been found to require not only bare phate & 0. Chemical Manure Co. v. London avoidance of known precedents, but a slight & St. K. Docks Co. L. R. 9 Ch. Div. 503, 39 factor of safety in the presence of such L. T. N. S. 433, 27 Week. Rep. 267, 1 Eng. powerful forces as tides. The defendant Rul. Cas. 276; Carney v. Caraquet R. Co. was conducting its business not in a new 29 N. B. 425; and Burt v. Victoria Graving and untried country, where there must be Dock Co. 47 L. T. N. S. 378; Gulf Red something of the unknown even in the re- Cedar Co. v. Walker, 132 Ala. 553, 31 So. cent past, but in one of the oldest and most 374, 11 Am. Neg. Rep. 179. See also Gleeson highly commercialized cities of the conti. v. Virginia Midland R. Co. 140 U. S. 435, nent, where records appear to have been 35 L. ed. 458, 11 Sup. Ct. Rep. 859; Howe kept for a long period with considerable v. Ashland Lumber Co. 110 Me. 14, 85 Atl. accuracy and studied with care, so that the 160; Kansas City v. King, 65 Kan. 64, 68 teachings of experience might have been Pac. 1093; Ohio & M. R. Co. v. Ramey, 139 found to have been available to the ordi- 111. 9, 32 Am. St. Rep. 176, 28 N. E. 1087; narily prudent business man, even though Chicago, P. & St. L. R. Co. v. Reuter, 223 himself lacking in exact knowledge. The Il. 387, 79 N. E. 166; State v. Ousatonic state of society, the customs of others, and Water Co. 51 Conn. 137; Willson v. Boise the limits of reasonable expense sometimes City, 20 Idaho, 133, 36 L.R.A. (N.S.) 1158, may be decisive elements in exonerating a 117 Pac. 115, 1 N. C. C. A. 203; New Bruns. defendant from liability for damages re- wick S. B. & Canal Transp. Co. v. Tiers, 24 sulting from unusual, though not unprece N. J. L. 697, 714, 64 Am. Dec. 394; Gulf, dented, storm or freshet, cold or flood. On C. & S. F. R. Co. v. Pomeroy, 67 Tex. 498, these grounds perhaps Cowles v. Pointer, 501, 3 S. W. 722; Atkinson v. Chesapeake 26 Miss. 253, and Pearce v. The Thomas & O. R. Co. 74 W. Va. 5, 82 S. E. 502; Newton (D. C.) 41 Fed. 106, may be dis. Kuhnis v. Lewis River Boom & Logging Co. tinguished. The defendant's business was 51 Wash. 196, 98 Pac. 655. Reliance is not of a nature to render impracticable the placed by the defendant on The C. H. avoidance of damages from the tides. All Northam (D. C.) 181 Fed. 986. That, howthat appears to have been required was the ever, was a finding as matter of fact by a elevation of the floor level of its sheds or district judge upon the evidence before him, some degree of waterproofing. The im- and does not rest upon any principle of probability of the occurrence of the event law at variance with the conclusion here is not the sole consideration, but the feasi. reached. bility of preventing injurious results flow- The defendant presented several requests ing from it often is a potent factor in de for instructions in different forms, to the termining whether there is liability. Cor- effect that if the plaintiffs knew where their mack v. New York, N. H. & H. R. Co. 196 wool was being stored, and continued for N. Y. 442, 24 L.R.A. (N.S.) 1209, 90 N. E. a series of years without objection to de. 56, 17 Ann. Cas. 949; Jones v. Minneapolis posit with the defendant, they consented to & St. L. R. Co. 91 Minn. 229, 103 Am. St.' the particular place of storage and assumed

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