Blum v. Monahan

Freedman, P. J. This action was brought to recover the sum of $147.28 damages resulting from the loss of goods intrusted to the defendant as a common carrier for delivery to a customer of the plaintiff, the deféndant having failed to deliver the same, [180] the goods being lost while in his custody. The liability of the defendant is admitted, the only issue being as to the amount. The defendant contends that the goods were received under and in pursuance of a written contract limiting his liability. The contract referred to, and upon which the defendant relies to absolve him from -the payment of the value of the goods, reads as follows: “ It is mutually agreed that 'the liability of Monahan’s Express will not exceed $50 unless a greater value is stated or receipted for —1 Accidents caused by fire or water while on transit, at owner’s risk. Articles of glass or contained in glass received at owner’s risk.” It is admitted that the goods in question were taken by the defendant to his place of business, there sorted for delivery and placed with other goods to.be delivered along the same route; that while upon his premises and in his care the goods disappeared, and that, although diligent search has since been mad. for them, no trace thereof has been discovered. The goods were never delivered at their place of destination nor returned to the plaintiff. An examination of the printed clause referred to shows that it in no way relieves the carrier from liability for losses resulting from its own negligence. Westcott v. Fargo, 61 N. Y. 542; Lowenstein v. Lombard, Ayres & Co., 164 id. 324; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 id. 370; Magnin v. Dinsmore, 56 id. 168. The defendant herein, having admitted the receipt of the goods, it devolved upon him to show that their loss occurred through no negligence or fault upon his part, and this burden rests upon him. Lichtenstein v. Jarvis, 31 App. Div. 33; Rhind v. Stake, 28 Misc. Rep. 177; Lockwood v. Manhattan Storage & Warehouse Co., 28 App. Div. 68. This the defendant failed to do, the fact of mere disappearance not being sufficient to exonerate the carrier from liability. See cases cited. Judgment reversed and new trial ordered, with costs to appellant to abide the event. McAdam and Gildersleeve, JJ., concur. judgment reversed and new trial ordered, with costs, to appellant to abide event.