Jean, Garrison & Co. v. Flagg

45 Misc. 421, 90 N.Y.S. 289

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1904
• Status: Published

Opinion

Fitzgerald, J.

The bill of lading given by carrier to shipper, recites that the goods when received at East St. Louis by the carrier were “ in apparent good order, except as noted, contents and condition of contents of packages unknown.” This was no more than a statement that the packages apparently were in good order,, and when taken in connection with the express disavowal of any knowledge of the contents or its condition, cannot be held to mean more than that the external appearance of the packages when shipped was good. It would be unreasonable to hold that an acknowledgment of the good condition of the merchandise was to be presumed from the mere delivery of a bill of lading containing such expressions. Miller v. Hannibal & St. Jo. R. R. Co., 90 N. Y. 430; Roth v. Hamburg-American Packet Co., 59 N. Y. Super. Ct. 51.

The burden was upon the plaintiff to prove negligence, and as a first step in that direction it was essential to have shown the condition of the goods at the place of shipment. The fact of delivery of goods by a carrier to the consignee at the destination in an injured condition is not enough. “ It must be shown in what condition the carrier received them, in order to prove an injury in his hands.” Smith v. N. Y. C. R. R. Co., 43 Barb. 225.

As there was no evidence offered upon this subject, we are of opinion that plaintiff failed to make out a case, and having arrived at that conclusion, it is unnecessary to discuss the other points raised.

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

Freedman, P. J., and Bischoff, J., concur.

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