majority">By the Court, E. Darwin Smith, J.

Upon the question whether the defendant was a common carrier of passengers from Hew York to San Francisco, I think the verdict of the jury warranted by the evidence, and clearly right. It is not claimed that the law was not correctly stated to the jury by the circuit judge; and if it be true, as the counsel for the appellant claims, that the facts being undisputed, it was for the court to expound or interpret the contract, yet if the jury have found as the judge would have been bound to hold, no injury has been done to the defendant. The question remains, under the charge of the judge, in respect to the law, whether the verdict was right or erroneous, on this question. The action was not one on contract, where, as a general proposition, it is the duty of the court to construe and interpret the contract, but upon the duty on the principle of the old action on the case.

*503The advertisement of the line as “ Vanderbilt’s line between New York and San Francisco,” giving the names of the ships on the Atlantic and the Pacific, and stating that “ From San Juan De Nicaragua passengers would be promptly conveyed over the new transit route of the Nicaragua Company, having but twelve miles of land transportation, and at that point embark in one of the above named Pacific steamers for San Francisco;” and directing persons seeking passage to “ apply only at the office of the line, No. 9, Battery Place;” with proof of the application by the plaintiff at that place for a passage to San Francisco, where over the door of the office he found a sign of “Vanderbilt’s line for California,” or “Vanderbilt's through line to California;” and where he received for the entire sum of $250, two tickets headed as follows, “ Vanderbilt’s line for California, via Nicaragua,” one for the Atlantic and one for the Pacific steamer—with a third ticket for the transit route; with proof that the defendant owned the Atlantic steamers and was part owner of those upon the Pacific—all taken together, imported, in my opinion, a contract by the defendant, as a common carrier, to transport the plaintiff from New York to California; and were entirely sufficient, as evidence, when submitted to the jury, to authorize a verdict to the effect that the defendant held himself out as, and assumed the duty of, a common carrier for the entire distance.

In the case Quimby v. Vanderbilt, (17 N. Y. R. 310,) quite similar to this, the evidence was submitted to the jury to imply a contract, and this course was sanctioned by the court of appeals. The propriety of such a disposition of the cause on this point, at the circuit, is, I think, hardly an open question. It being settled, therefore, that the defendant was a common carrier from New York to San Francisco, it follows that he was bound to forward the plaintiff within a reasonable time, and when it was ascertained that one of the Vessels on the Pacific was lost, it was his duty to provide another with all reasonable diligence.

*504[Cayuga General Term,June 6, 1859.

T. R. Strong, Johnson and Smith, Justices.]

Upon the assumption that the defendant was a carrier for the whole distance, this proposition, I suppose, can hardly be disputed. (Beebe v. Johnson, 19 Wend. 500. Harmony v. Bingham, 2 Kern. 99.) If it was the duty of the defendant thus to provide some new conveyance to transport the plaintiff from San Juan Del Sud to San Francisco, after the loss of the North America, we come then to the chief question of fact that remains. Did the defendant exercise all reasonable diligence in providing another vessel to take the plaintiff to California ? This is the precise question submitted by the circuit judge to the jury, and which the jury, in finding a verdict for the plaintiff, have necessarily answered in the negative. Is this verdict clearly against evidence, or the weight of evidence ? On this question of fact it seems to me the evidence was not very strong or conclusive. It was, however, purely a question for the jury. It was very fairly submitted to them. The charge of the judge was very guarded, careful and unexceptionable, and although we might have come to a different conclusion from that of the jury on the evidence, we are not at liberty, for that reason, to disturb the verdict. (27 Barb. 540.)

As respects all other questions and exceptions raised in the case, they have been so fully considered and discussed by the judge at special term, that I do not deem it expedient to examine them in detail, concurring as I do fully in the opinion then delivered.

The judgment of the special term, I think, should be affirmed.

Judgment affirmed.

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