Sabbatino v. Snow's U. S. Sample Express Co.

Majority

p. 416

Frank Sabbatino, Respondent, v. Snow's U. S. Sample Express Company, Limited, Appellant.

Second Department,

June 7, 1907.

Headnote

Carrier — contract to deliver goods at shipper’s residence — liability for injury by connecting carrier.

A carrier engaged in transporting express within the limits of the "borough o'f Manhattan, ■ who receives property’under an express contract to deliver it at the shipper’s residence in an adjoining borough of the city, is liable for its destruction, although it delivered the property in good condition to- a connecting carrier in. the other borough. " .

Appeal by the defendant, Show’s U. S. Sample Express Company.,. Limited, from a, judgment" of the Supreme-Court in ffivor of-the plaintiff, entered in the. office of the clerk of the county .of Kings on the 17th day of October, 1906, upon the verdict of á jury, and also from an order entered in .said clerk’s-office on the . 30th day of October, 1906, denying the defendant’s motion for a hew'trial " made upon the minutes. '.

William D. Stiger [Arnold W. Sherman with him on the brief], for the appellant.

Nelson L. Keach [Achille J. Oishei with him on the brief], for the respondent.

" The judgment recovered by the plaintiff is for damages resulting from injuries to certain goods delivered by him to the defendant for .transportation in the city of Kiew York,, and injured or destroyed in transit, defendant is -a domestic corporation engaged in the express business in the borough of Maphattan, and it received the

p. 417

goods in question from the plaintiff on the 28th day of ■ September, 1903, under an express oral agreement to deliver them to the plaintiff at his residence in President street, borough of Brooklyn. That the goods were injured or destroyed was established by sufficient proof and that they were worth the amount for which a recovery has been had was not disputed on the submission of the case to the jury. I fin'd no error in ruling which justifies a reversal.

The chief contention on the part of the appellant- is that the defendant’s express business is confined to the borough of Manhattan, and that- on receiving the plaintiff’s property it delivered the same in'good condition to another express company doing business in the borough of Brooklyn, and that the damage sustained, if any, was occasioned by the negligence of the latter. I do not think the doctrine which exempts .connecting carriers from liability for negligence other than their own is applicable in this instance, but if it were, it is sufficient that the evidence on the part of the plaintiff tending to show an express or special contract for delivery at his residence was in no respect refuted on the trial by the defendant.

The judgment and order should be affirmed.

Present—Hirsohberg, P. J., Woodward, Jenks, Hooker and Miller, JJ.

Judgment and order unanimously affirmed, with costs.