Schastey v. Bache

9 Daly 484

• Court: New York Court of Common Pleas
• Decided: February 7, 1881
• Status: Published

Opinion

Per Curiam.

The case is entirely barren of evidence which would in the least tend to show whether the injury which the mirrors were found to have suffered when they were opened at the barn of Mr. Crocker occurred during their transportation by rail to the city of San Francisco, or during the time they were being carried from the railroad depot to the barn of Mr. Crocker through the city of San Francisco.

It was urged by the counsel for the respondent that from all the evidence in the case it was the privilege of the jury to determine where that injury occurred.

In the case of Canfield v. Baltimore and Ohio Railroad Company, the court of appeals have held that it is the duty of a party to show by some evidence where the injury occurred in order to justify the jury to make any finding upon that subject in a case in which the liability depends upon the injury having occurred during a certain portion of the transportation. That case was an action against a common carrier to recover for goods alleged to have been abstracted from packages delivered to him for transportation and which packages were duly delivered to the consignee. The plaintiff’s evidence was to the effect that the goods lost were properly packed in one of eighteen boxes which were delivered to a cartman to take to the defendant’s depot, to be transported from Washington to the city of New York, and that one of the parties interested in them, who was dead at the time of trial, was with the cartman when the boxes were delivered to defendant. The boxes reached their destination, and were delivered to the consignees. The cartman who received them testified that the packages were in good order as far as he knew, and there was nothing broken open or in bad order. Some two or three days after delivery, on opening the box and discovering the loss, the box was then first examined particularly, and the discovery was made that it had been opened and the nails re-driven. No evidence was given of the care taken of the boxes from the time of delivery to that of the discovery of the loss. The jury having found a verdict for the plaintiffs, it was held that there was no legal proof upon which a finding could be based that the goods were abstracted while the. packages were in the defendant’s possession, and that a denial of a motion to dismiss the complaint was error.

There seems to be no difference whatever between that case and the one at bar. The plaintiff must show, in order to recover, by some evidence, that the injury has occurred during the time the goods were covered by the contract of insurance, and the jury cannot be permitted, without any evidence upon that subject, to speculate as to where, and when, and how, the injury has occurred.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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