Rieser v. Metropolitan Express Co.

Bischoff, J. Goods, in all respects properly packed, were delivered to .the defendant by the plaintiff, with notice that the shipment included glass, under a contract whereby the defendant was to be held liable only for damage caused by fraud or “ gross negligence,” and not “ upon' any fragile •fabrics or any fabrics consisting of or contained in glass.” This contract was expressed in the receipt delivered to the plaintiff, and the words “glass” and “owner’s risk'” were stamped upon ‘the receipt. When the goods arrived at their destination the glass was broken, the damage thus represented being fifty dollars, for which amount —^ the sum limited by the receipt — the plaintiff, sued. Upon an agreed statement of facts, the justice dismissed the complaint for failure of affirmative proof of negligence. The general words of exemption from liability for damage [633] in the case of shipments of glass, and the words “ owner’s risk,” did not operate to relieve the defendant from the consequences of its negligence (Rathbone v. N. Y. C. & H. R. R. R. Co., 140 N. Y. 48), but still the shipment was subject to the limitation of liability to cases of “ gross negligence,” and the actual question is whether the plaintiff, upon the agreed state of facts, sustained the burden of proving “ gross negligence.” We think he did. The general rule is that where goods, properly packed, are delivered to a carrier, their arrival in a damaged condition-calls upon the carrier to explain the cause of the .injury, if it is to escape liability for negligence. Campe v. Weir, 28 Misc. Rep. 243. The injury is prima facie proof of the absence of care called for by the circumstances, and the party having the exclusive means of knowledge of the facts is thus called upon to disclose them. “ ‘ Gross negligence ’ is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term ‘ ordinary negligence,’ but, after all, it means the absence of care that was necessary under the circumstances.” Milwaukee & St. Paul R. R. Co. v. Arms, 91 U. S. 489. In the case at bar the injury to the goods suggests the absence of care, and while the defendant might escape liability for gross negligence upon an explanation slighter than would be required if negligence simply were the test, still the explanation was called for by the facts which imported an omission of such prudence as the circumstances required, in view of the proper packing and labeling of the goods, with an extensive injury notwithstanding. The defendant having given no explanation, the plaintiff’s case, founded upon “ gross negligence,” was established. Campe v. Weir, supra. - The judgment must, therefore,- be reversed and judgment' directed for the plaintiff, upon the agreed statement of facts, for fifty dollars, with costs in this court and in the court below. Gildersleeve, J., concurs.