134 Misc. 475 | N.Y. App. Term. | 1929
Lead Opinion
In Kaufer Co. v. Luckenbach S. S. Co. (294 Fed. 978) it was held that the exception of damage by heat referred to temperature of the weather and did not exempt the carrier from liability for damage from artificial heat generated by the ship. Applying that rule to the present case under plaintiff’s claim that the cargo was injured by artificial heat, the burden of proof of absence of negligence in stowing would fall upon the appellant. Defendant’s witnesses’ testimony, to the effect that the stowage was proper and usual, sustained that burden and was not met by any evidence to the contrary except vague inferences. The defendant was, therefore, entitled to judgment. (The Rangoon Maru, 27 F. [2d] 722.)
Bijur and Peters, JJ., concur.
Dissenting Opinion
I agree that the heat complained of did not come within the exception, but I do not agree that defendant’s proof was sufficient to overcome the prima facie case existing in plaintiff’s favor. Under the circumstances the question of negligence was one of fact for the trial court. I vote for affirmance.
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs, but with leave to respondent to appeal to the Appellate Division.
