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Lyon v. Western New York & P. Railroad

34 N.Y.S. 532 Court N.Y. Gen. Term Decision date 1895-06-21 English

Delivered by LEWIS, J.

Contents

Majority

p. 532
(88 Hun, 27.)
LYON v. WESTERN NEW YORK & P. R. CO.
(Supreme Court, General Term, Fifth Department.
June 21, 1895.)

Headnote

Evidence—Parol to Explain Writing.
In an action against a carrier to recover damages to goods in transit plaintiff may show by parol that defendant agreed to transport the goods in a ventilated car, and that the injury resulted from failure to do so, where the bill of lading did not specify the kind of car to be used.
Appeal from Allegheny county.
Action by Frank B. Lyon against the Western New York & Pennsylvania Railroad Company. From a judgment of the county court reversing a judgment recovered in the justice’s court for $78.63, damages sustained by plaintiff by the alleged negligence of defendant in failing to deliver a quantity of eggs shipped by plaintiff on defendant’s road at the village of Cuba, defendant appeals.
Affirmed.
Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and WARD, JJ.
Allen J. Hastings, for appellant.
Frank H. Todd, for respondent.

The plaintiff, on the 8th day of July, 1889, at the village of Cuba, shipped by the defendant’s road 900 dozen of eggs, consigned to a firm at Wilkesbarre, Pa., which the defendant, for value received, agreed to transport with reasonable dispatch, and deliver to plaintiff’s consignees at Wilkesbarre, in the state of Pennsylvania. Plaintiff claimed that the defendant failed to perform its agreement with reasonable dispatch, and, in consequence of such negligence, the eggs, when delivered, were in a decayed and broken condition, to plaintiff’s damage. The evidence as returned by the

p. 533
justice is very brief and fragmentary, and fails to give a very satisfactory statement of what occurred upon the trial. It is conceded by the pleadings that the defendant received the eggs from the plaintiff, and agreed, for a consideration, to transport them as stated above. The defendant gave evidence tending to show that it delivered the eggs with reasonable dispatch to the Delaware, Lackawanna & Western Railroad Company, a connecting common carrier, and claims that, if the eggs were injured by delay in their delivery, it was the result of the negligence of the Delaware, Lackawanna & Western Railroad Company, and not of the defendant

The justice’s return contains what purports to be a copy of a bill of lading delivered to the plaintiff at the time of the shipment of the eggs. We assume that the copy returned was the one testified to by defendant’s agent, although the justice’s return fails to so state. Upon the copy thus returned appear to be some letters, words, and figures which are claimed by the defendant to mean that the defendant’s contract was to deliver the eggs to the connecting road mentioned. The testimony fails to explain the meaning of the figures and letters referred to, and, without some explanation, we are not informed as to their meaning. The plaintiff’s evidence tended to show that he filled out at the time of the shipment a blank bill of lading furnished Mm by the defendant’s agent, and that one copy thereof was delivered to him; that, at the time it was delivered to him, it did not contain the letters, words, and figures referred to, but that they must have been inserted by the agent or some other official of the defendant after the execution and delivery of the bill of lading, and after the shipment of the eggs. TMs evidence does not appear from the justice’s return to have been contradicted. The defendant having admitted by its answer that it agreed to transport the eggs to Wilkesbarre, it was liable for damages caused by the negligence of its connecting road. Jennings v. Railroad Co., 127 N. Y. 438 , 28 N. E. 394 .

The plaintiff testified that the defendant agreed to transport the eggs in a ventilated car, and that it failed so to do, and that the injury to the eggs resulted in part from their being shipped in a common, unventilated car. The objection of the defendant that this testimony was inadmissible, for the reason that it tended to vary or contradict the terms of the bill of lading, was not, we think, well taken. There was nothing in the copy of the instrument returned stating the kind of car to be used. The evidence, we think, fairly established the plaintiff’s cause of action.

The judgment appealed from should be affirmed. All concur.

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