179 A.D. 465 | N.Y. App. Div. | 1917
The plaintiff, on this appeal from a 'judgment of nonsuit, is entitled, of course, to the most favorable inferences fairly to be deduced from the evidence, but it is necessary that there should be some evidence fairly intended to support the allegations of the complaint controverted by the defendant. The complaint' alleges, aside from the corporate character of the defendant, that “ In or about September, 1915, it agreed for a valuable consideration to transport for the plaintiff from New York City to Troy over its said railroad a car load of bananas which it knew to be perishable fruit purchased by plaintiff to be sold as food by him in Troy, N. Y., and to deliver the same to plaintiff at its Troy freight station in good and merchantable condition. Nevertheless, it so negligently, carelessly and dilatorily cared for and transported the said merchandise that whereas when defendant received the same for transportation the same was worth a large sum of money, to wit, five hundred dollars, the said merchandise when offered for delivery at the said Troy freight station was utterly worthless and in a decayed condition, to plaintiff’s damage five hundred dollars.” The answer denied all of the allegations of the complaint aside from its corporate capacity.
The defendant delivered its uniform bill of lading, bearing date of September 14, 1915, in which it acknowledged receipt of the goods described therein as “ one car load of bananas,” in “ apparent good order, except as noted (contents and conditions of contents of packages unknown),” and there were no notations of any exceptions. This is the only possible evidence as to the condition of the bananas at the time the bill of lading
The plaintiff attempted to prove the time it required for shipments from New York to Troy, but entirely failed. The question asked was not the ordinary time of shipments from New York to Troy, but what was the ordinary time that is taken “ for shipment of bananas from Weehawken over the West Shore tracks to Troy,” and the answer was “ Ordinarily, should be in on the coming noon time, not later, which would make it not more than fifteen hours, or sixteen at the most, or we can stretch it to a day.” The shipment was made some time on the fourteenth day of September, from the city of New York, the hour not being given, and it appears to have arrived in Troy on the sixteenth, though at what hour does not appear, and there is very little foundation for any suggestion of negligent delay, even if we assume the running time would be sixteen hours from New York. But there is no evidence of the time necessary to make the shipment from New York by way of the West Shore railroad, and the court very properly granted a nonsuit.
The order and judgment appealed from should be affirmed, with costs.
All concurred, Kellogg, P. J., in result, except Cochrane, J., who dissented.
Judgment and order affirmed, with costs.