Downey v. Inman & International Steam Ship Co.

Ehrlich, J. Plaintiff sues defendant as a common carrier, a loss of baggage through defendant’s negligence. Defendant denied the charge of negligence; pleaded and proved a special contract, under which it was exempt from liability, except for gross neglect, and tending also to limit the damage claimed to the sum of $50. Uo proof of defendant’s negligence was offered beyond the fact that defendant’s vessel, upon which plaintiff took passage, was burned at sea. The court'denied appellant’s motion to dismiss for want of proof of negligence, and directed a verdict for plaintiff for $50 and interest. The controverted question of negligence was a question of fact, and not of law, and therefore it ought to have been submitted to the jury. This is true, although the precise circumstances attending the loss are not in dispute, since different inferences as to negligence might be drawn therefrom. The jury might have found from the facts established that defendant was guilty of gross negligence, but they were not bound to do so. Cochran v. Dinsmore, 49 N. Y. 253. The judgment should be reversed, and a new trial ordered; costs to abide event. Browne and Pitshke, JJ., concur.