Brooks v. Dinsmore — 6 N.Y. St. Rep. 281

Majority

p. 281

Soloman Brooks and Mark Brooks, Resp’ts, v. William B. Dinsmore, as President of the Adams Express Company, App’lt.

(New York Common Pleas, General Term,

Filed February 7, 1887.)

Headnote

1. Carrier—Negligence—How proved by damaged condition op property WHEN DELIVERED.

A party is bound to prove the condition of property at the time it went into the hands of a carrier, in order to show by the damaged condition of said property when delivered, that the carrier was negligent.

p. 282

3. Same—When the burden oe explaining, put on carrier.

Proof of the good condition of property when received by a carrier and the injured condition when delivered, throws on him the burden of explaining how it became so.

8. Same—Bill op lading—Proof op condition when received by carrier.

The bill of lading, or the document that answers that purpose, acknowledging the receipt of property in good order and in good condition would be sufficient in the first instance, to show that the property was uninjured at the time it was shipped.

4. Same—No presumption as to condition op property.

There is no presumption that property is in good order when shipped, nor that it remains in good order while in the hands of a third party, intermediate the receipt and time of shipment.

Appeal from a judgment of the district court in favor of the plaintiff, for the value of certain goods claimed to have been damaged by defendant.

It appeared from the evidence, that plaintiff shipped goods to Hopkinsville, Kentucky, a part of all of which were returned, and plaintiff alleges that when delivered in Hew York on such return, the goods were wet, and brought this action to recover damages by reason of the injury thus caused.

D. C. Morrell, for resp’t; Sewarcl, Da Costa & Guthere, for app’lt.

In order to show that the defendant was negligent, the plaintiffs were bound to prove the condition of the goods at the time they went into the hands of the carrier at Hopkinsville, Kentucky.

As the goods were wet when the defendant delivered them to the plaintiffs, it would have been incumbent upon defendant to explain how they became so, if the plaintiff proved that they were in good condition at the time of their shipment. Russell Manuf’g Co. v. N. H. S. B. Co., 50 N. Y., 127 .

The bill of lading, or the document that answers the purpose of a bill of lading, acknowledging the receipt of the goods in good order and in good condition, would have been sufficient, in the first instance, to show that the goods were uninjured at the time they were shipped. Koenigsheim v. Hamburg Packet Co., 12 Daly, 123 .

There is no presumption that the goods were in good order when shipped, nor is it to be presumed that they remained in the same condition in which they were at the time the plaintiffs forwarded them to Hopkinsville for inspection by their customer at that place.

The goods had been out of the possession of the express companies, and in the hands of the plaintiff’s customer, and there can be no presumption that whilst out of the defendant’s control the goods were always in safe hands.

p. 283

Judgment reversed and a new trial ordered, with costs to abide the event.