Majority
p. 48SEJALON v. WOOLVERTON. (Supreme Court, Appellate Term. April 16, 1900.) Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.
Headnote
Carriers—Loss or Injury to Goods—Actions—Burden of Proof.In an action against a carrier to recover for injury to goods being transported by it under a contract which exempted it from liability for loss arising from certain causes, the burden is on plaintiff to show facts taking the case out of the operation of the exemption clause.
Appeal from municipal court, borough of Manhattan.
Action by Charles R. Sejalon against William H. Woolverton, as president of the New York Transfer Company. From a judgment in favor of defendant, plaintiff appeals.
Affirmed.
William H. Chorosh, for appellant.
Lockwood & Hill (Joseph E. Russell, Jr., of counsel), for respondent.
There was sufficient evidence adduced upon the trial to warrant the justice in finding, as is assumed from the judgment, that the wheels were transported by the defendant under a special contract, at the plaintiff’s risk of damage. The burden was therefore upon the plaintiff to show facts taking the case out of the operation of the exemption clause. Whitworth v. Railway Co., 87 N. Y. 413 , 419; Canfield v. Railroad Co., 93 N. Y. 532 . This he wholly failed to do, and, under the circumstances, we have no alternative other than to affirm the judgment.
Judgment affirmed, with costs.
Cases cited
- Whitworth v. Erie Railway Co. 87 N. Y. 413 at 419 p. 48
- Canfield v. Baltimore & Ohio Railroad 93 N. Y. 532 p. 48