57 N.Y.S. 833 | N.Y. App. Div. | 1899
This action was brought against the defendant, a warehouseman, for the loss or destruction of certain goods stored with him by the plaintiff. On a previous appeal (9 App. Div. 36) we reversed a judgment obtained by the plaintiff on the ground that the trial court erred in refusing to charge that the burden was on the plaintiff to prove that the goods were lost through the defendant’s neglect. On the second- trial, at the conclusion of the plaintiff’s evidence, the complaint was dismissed. From the judgment entered on that ruling this appeal is taken.
We will assume, for the purpose of the discussion and in accordance with the respondent’s claim, that the only evidence of negligence'on the part of the defendant was the happening of the .accident by which the plaintiff’s goods were destroyed. The question then presented to us is, whether the character of the accident raised a presumption of negligence which required the submission . of the question to the jury. Our previous decision did not decide this question. The only- point passed upon was, on which party did the burden of proof rest when the. case-finally went to the jury. The fact that we held that that. burden rested on the plaintiff did
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.-