70 N.Y.S. 804 | N.Y. App. Div. | 1901
This action was brought to recover $122 as damages for injuries done to a granite monument belonging to the plaintiff, who alleges
The facts, as gathered from the pleadings and the evidence, appear to be that the plaintiff purchased the monument in question from Swingle & Falconer of Quincy ■ Adams, Mass., who were to deliver the same free on board the cars at that point, consigned to the plaintiff at Greenpoint, N. Y., and that Swingle & Falconer, as we shall assume, acting as the agents of the consignee, filled out the customary bill of lading, which was subsequently signed by the agent of the defendant at the shipping point. This bill of lading, in so far as it is material to the question here involved, provides that “ It is mutually agreed, in consideration of the rate of freight hereinafter named, as to each carrier of all or any of said property over all or any portion of said route to destination, and as. to each party at any time interested in all or any of said property, that every service to-be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained, and which are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonable. * * * The amount of any loss or damage for which any carrier becomes liable shall be computed at thé value of the property at the place and time of shipment under this bill of lading, unless a lower value has been agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the
At the close of the evidence the defendant’s counsel moved for a direction of a verdict in behalf of the plaintiff for twenty-nine dollars, with interest, this “ being the 40 cents per cubic foot, which was the amount agreed upon in the contract of shipment as the amount to which the plaintiff’s recovery should be restricted in case of loss.” At the same time plaintiff’s counsel moved for a direction of a verdict to the extent of the full injury to the monument. The court, thus left to the determination of the law and the facts, directed a verdict for the plaintiff for one hundred and twenty-two dollars, the full amount of damages claimed, to which the defendant duly excepted. In making this direction the learned court held: “ There is enough to find-negligence on, and the exemption does not include negligence.”
The question thus presented upon this appeal is whether the defendant has, by its contract, exempted itself from liability, to the extent of the special acceptance, for its own negligence. While the evidence of negligence is not very strong, it is practically conceded as the basis of responsibility by the defendant, in its failure to deny the allegation of negligence- made by the plaintiff; and, under the rule suggested in Steers v. Liverpool, N. Y. & P. Steamship Co. (57 N. Y. 1), we may, in support of the judgment, deem the negligence of the defendant to have been' established.
Passing over the fact that the written - contract pleaded by the defendant does not show that any rate of freight was agreed upon for the shipment, or that there was, in fact, any reduction in the rate, we will assume the contract to be complete, and that the shipment was made under the conditions alleged, so that the question of law alone may be disposed of without complication. There has been
The case of Zimmer v. N. Y. C. & H. R. R. R. Co. (137 N. Y. 460) at first reading seems to run counter to the conclusion here reached, but in that case the contract was of a special character; it was headed “ Live Stock Contract of release and agreed valuation according to the official classification of the New York Central and Hudson River Railroad,” and “ recited that the company transported live stock at certain prices ‘ carrier’s risk,’ and at reduced prices, upon certain risks being assumed by the shipper, and upon the condition that the property was valued as stated below. The contract then read: ‘Now in consideration that said company will transport at said reduced prices, one horse valued at not exceeding $100, * * * consigned to G. P. Coolidge at Antwerp, N. Y., it is * * * agreed that in the event of the loss, death or injury of the animals, or any of them, from causes which would make the carrier liable, such liability shall not, in any case, exceed an amount to be fixed according to the above valuation.’ ” The horse was killed through the negligence of the railroad company, and the owner brought an action to recover the value of the horse, alleged to be $5,000, on which he recovered a verdict for $3,100. The judgment was'reversed on appeal to the General Term, on the ground that the contract limited the recovery to $100, and this was supported on appeal to the Court of Appeals. It will be observed, however, that this .comes within the spirit of the exception to the general rule; the railroad company, by requiring the contract briefly outlined above, had given notice that it would not be responsible for goods of unusual or extraordinary value unless this fact was disclosed at the time of making the shipment, and the shipper having declared the value of the horse at $100 for the purpose of securing the concession
The judgment appealed from should be affirmed, with costs.
Judgment unanimously affirmed, with costs.