Hutkoff v. Pennsylvania Railroad

29 Misc. 770, 61 N.Y.S. 254

Opinion

Fitzsimoes, Oh. J.

The action was to recover the value of a case of plate glass shipped to the plaintiff over the defendant’s road from Creighton, Pennsylvania, to New York city, about August 19, 1895.

The glass contained in the case was found, upon its arrival, to be shattered and totally valueless. The evidence clearly showed that the glass was in good condition when it was placed in the defendant’s charge, and that the breakage must have occurred while it was in its custody. The provision in the bill of lading that the carrier shall not be liable for any loss or damage by breakage, does not exempt the carrier from the consequences of its own negligence. Canfield v. Baltimore & Ohio R. R. Co., 93 N. Y. 532; Mynard v. Syracuse, B. & N. Y. R. R. Co., 71 id. 180; Holsapple v. Rome, W. & O. R. R. Co., 86 id. 275. Fifteen other cases of glass formed part of the same shipment and arrived in good order and condition. The one in suit would have so arrived, unless negligently handled or controlled by the defendant. This is the presumption at all events, and was not overcome by anything offered by the defendant. Campe v. Weir, 28 Misc. Rep. 243; Roth v. Hamburg-American P. Co., 35 N. Y. St. Repr. 89; Trimble v. N. Y. C. & H. R. R. R. Co., 39 App. Div. 403, 412. There was certainly evidence bearing upon the question of negligence to require the submission of the case to the jury, to whom it was sent upon an impartial charge.

The jury found for the plaintiff, and as the exceptions are without merit, the judgment must be affirmed, with costs.

Con-law and McCarthy, JJ., concur.

Judgment affirmed, with costs.