Fox v. Wabash Railway Co.

Daly, P. J. The appellant is under a misapprehension concerning the law of this state applicable to cases like the present. Where several carriers unite to complete a line of transportation, a passenger, who has delivered baggage in good condition to the first One of the series, may bring his action against any subsequent one in whose hands he finds the baggage in a damaged condition; and can recover without proving that the particular company sued received the property uninjured; as. the original good condition will be presumed to have continued up to the time the company sued received the property, but this presumption is not conclusive and may be rebutted by proof, upon the part of the company sued, that the property was in fact damaged when received by defendant.' In Smith v. N. Y. C. R. R. Co., 43 Barb. 225, the court said: “ Give to such party the benefit of the presumption that the goods he has delivered in good order in such case continued so until they came to the possession of the company which delivers them at the place of destination in a damaged condition, and his rights will-be completely protected. The burden is then shifted upon the latter company of proving that such goods came to its possession in a damaged condition by way of defense.” Affd., 41 N. Y. 620. In an-action against a-transfer company for injury to baggage, the railroad ticket for which was. given to its agent before the plaintiff reached his destination, it is not incumbent upon the plaintiff to show, that such baggage was in good condition when received by the defendant, but proof that it was delivered in. good condition to the railroad company is sufficient to throw upon the defendant the burden of showing that it was not received by it in the same condition. Myerson v. N. Y. Transfer Co., 9 Misc. Rep. 186. That company only is liable upon whose road the baggage is lost or destroyed. ■ Kessler v. N. Y. C. & H. R. R. R. Co., 61 N. Y. 538; Milnor v. N. [372] Y. & N. H. R. R. Co., 53.id. 363. The language quoted by appellant from the decision in Hawley v. Screven, 62 Ga. 347: “ When the company has paid McIntosh for his- baggage, let it reimburse, itself out of one of -the links of the- combination whose fault or negligence lost it. The defendant company alone has the power to trace it and fix such responsibility,” does not express the law of this state. Í' In this case the defendant company sustained the burden which the law cast upon it of showing that- any loss of contents as well as injury to the valise happened, before the property came into its possession, and the remedy of the plaintiff, therefore, is against some preceding company" guilty of the wrong, and not against .this defendant, whose responsibility did not commence until it received the baggage. Kessler v. N. Y. C. R. R. Co., supra. > " The judgment should be affirmed, with costs and disburse^ ments. 1 ■ McAdam and Bischoff, JJ., concur. : Judgment affirmed, with costs and disbursements.