Canfield v. . Baltimore Ohio R.R. Co.

Ruger, Ch. J. When this ease was before this court on a former appeal (75 N. Y. 144) it did not affirmatively appear that for the period of three days, elapsing between the time of the delivery to the consignees, by the carrier of the boxes originally containing the lost goods, and the discovery of the loss of the property contained in them, that such care had been proved by the plaintiffs to have been taken of them during that period, as to exclude the possibility of the loss having occurred after the goods had arrived in the possession of the consignees, and, therefore, that no stronger presumption of their loss while in the possession of the defendant could be indulged by the jury than that such loss occurred while they were in the possession of the consignees. For this reason the judgment upon the verdict in favor of the plaintiffs was reversed and a new trial ordered. This proof has now been supplied and that question is, therefore, eliminated from the case. The case is now presented as arising upon a contract between the consignors and the carriers, for the transportation of certain goods from Washington to New York at the owner’s risk, and their safe delivery to the consignees at the latter place. Assuming, for the purposes of the argument, that this contract of carriage is embraced in the bill of lading, and that that was duly delivered to the plaintiffs previous to the shipment of the goods, by the defendant, it was nevertheless a contract whereby the carrier was bound to exercise reasonable care and prudence in the transportation of the property, and to exercise a reasonable degree of diligence in forwarding it to its destination. The degree of care and caution which a carrier is bound to bestow upon property intrusted to him, to be transported from one point to another, under a contract that the same shall be transported at the owner’s risk, was formerly the subject of *537 some discussion in the courts, but for losses accruing through his gross negligence under such a contract, the authorities all concede his liability. (Moore v. Evans, 14 Barb. 524; Alexander v. Greene, 7 Hill, 546; Wells v. Steam Navigation Co., 8 N. Y. 380; French v. Buffalo, N. Y. & E. R. R. Co., 4 Keyes, 113.) Under the more recent decisions of the courts it is held that a carrier does not exempt himself from the consequences of his own negligence, unless that is expressly provided for in the contract of carriage. (Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 183; 27 Am. Rep. 28.) When the liability of a party is predicated upon his negligence in the performance of a duty which rests upon him by virtue of a contract or otherwise, the burden is always upon the plaintiff to establish the fact of negligence to the satisfaction of the jury, but when the fact of an injury is established, and negligence on the part of the defendant is shown, to which the loss or injury could reasonably be imputed as a cause, the question as to whether such injury was occasioned by the negligence proved is a question for the jury to determine. The proof in this case tended to show that the goods lost were contained in one of eighteen certain boxes of jewelry, delivered by the consignors to the defendant, at Washington on the 13th day of May, 1872, to be transported by them and delivered to Sackett, Davis & Co. in Hew York. It further tended to show that the said boxes were delivered by the defendant to the consignees on the 20th day of May thereafter, and were received by said consignees, and kept by them in the basement of their jewelry store in Hew York for a period of three days before the one containing the goods alleged to have been lost was opened, and the property described in the complaint was found to have been abstracted from the box which originally contained it. Evidence was given on the trial by the plaintiff, which tended to rebut the inference, that this property might have been abstracted from such box during the three days while it remained unopened in the custody of the consignees. Evidence was also given by the plaintiffs that more time was taken by the defendant in the transportation of these *538 goods from Washington to New York than was usual or customary, which was variously estimated by the witnesses as from three to six days, and which, as stated by one of defendant’s witnesses, was supposed to have occurred either at Baltimore, owing to insufficient facilities for transporting property through the city, or at Amboy, on account of an accumulation of freight at that point, or perhaps to both of those causes. Upon this evidence it was entirely competent for the jury to infer, not only that the goods proven to have been lost were in fact delivered to the defendant at Washington, but also the further fact that they never had been delivered to the consignees at the place of destination. If the jury should find the affirmative of both of these facts, as they would have the right to do upon the evidence, it would lead to the very natural presumption of a want of care on the part of the defendant while in course of transportation, whereby the property in question had been suffered to be abstracted from the packages containing it while in its custody. Had it not been for the rulings of the court below in this ease we should have considered the'law to have been settled beyond controversy, that proof of the non-delivery of property by a bailee upon demand, unexplained, makes out a prima facie case of negligence against such bailee in the care and custody of the thing bailed, and, in the absence of any evidence on his part, excusing such non-delivery, presents a question of fact as to the negligence of the bailee for the consideration of the jury. (Burnell v. N. Y. C. R. R. Co., 45 N. Y. 185; 6 Am. Rep. 61; Magnin v. Dinsmore, 56 N. Y. 168; Steers v. Liverpool, N. Y. & P. Steamship Co., 57 id. 6; 15 Am. Rep. 453; Fairfax v. N. Y. C. & Hud. R. R. R. Co., 67 N. Y. 11; Claflin v. Meyer, 75 id. 260 ; 31 Am. Rep. 467; Schmidt v. Blood, 9 Wend. 268; Moore v. Evans, 14 Barb. 524.) The principle upon which this rule is founded embraces as well the case of a partial as of a total failure to deliver the subject of a bailment. The rulings of the court on the trial and its repeated instructions to the jury that they could not find a verdict for *539 the plaintiffs, except upon the assumption that the property had been stolen or lost while in the possession of the defendant, and that such loss must be found to be attributable exclusively to the negligence of the defendant in delaying its transportation, were erroneous, and for that reason a new trial should be ordered. Having arrived at this conclusion it becomes unnecessary to examine or discuss the numerous other questions presented by this record. The judgment of the General Term should be reversed and a new trial ordered, with costs to abide the event. All concur. Judgment reversed.