140 N.Y. 48 | NY | 1893
The defendant as a common carrier undertook to transport for the plaintiff’s testator from" Albany to Rew York two boxes of marble, which in fact contained a piece of statuary called the “ Flight from Pompeii ” of the value of $2,500. One box contained the pedestal and the other the figure, and when delivered to the consignee the figure was found to be broken ;■ and we think there is sufficient evidence in the record to have required the trial court to have submitted to the jury the question whether the injury was not caused en route by the negligence of the defendant’s employees. Exemption from liability for negligence is claimed, however, on the ground that the shipping receipt provided that the property was to be transported upon conditions indorsed thereon which were to form a part of the contract of carriage. One of these conditions was that no statuary would be carried for the loss of which the defendant would be responsible unless with it, when delivered, there was also delivered a memorandum in writing stating the character and kind of articles and their value, unless a proper extra price for the carriage and responsibility for such articles was paid. Another condition was that marble would only be taken at the owner’s risk of fracture or injury during transportation and the loading and unloading thereof, unless specially agreed to the contrary. It is well settled that these stipulations in the contract will not be construed to relieve the carrier from
Notwithstanding the contract of shipment in this case defendant’s liability for negligence in the handling and transportation of the property remained unimpaired, unless there is some other ground upon which exemption can be predicated. Where the property transported is of unusual or extraordinary value a notice such as is contained in this shippmg receipt that the carrier will not be responsible for loss if the true character or value of the articles are not stated at the time of shipment, unless extra freight is paid, will operate to exempt the carrier from liability even for his own negligence, unless he is informed when or before the goods are received that they are of special or unusual value. (Magnin v. Dinsmore, 62 N. Y. 35 ; 70 id. 410.) In all such cases good faith on the part of the shipper is required, and his silence at the time of shipment is such a fraudulent concealment from the carrier of a material fact affecting his liability as to exempt him from his obligation to transport with due care. If the carrier omitted to give notice to the shipper that he would not be responsible for loss, unless the true character and value of the goods were stated, the latter might safely remain silent. He is not bound to speak unless notice of non-liability on the part of the bailee, in case he remains silent, is given. In the Dins-more case, there was a clause in the shipping receipt that, if
But from the record now here, it appears that some information was given by the plaintiff’s agents and servants to the carrier at the time of. shipment that the boxes contained marble statuary, and hence had a special value, which would entitle the defendant to increased compensation for carriage, if it saw fit to exact it. .The only description in the shipping receipt was that of two boxes of marble, contents and value unknown; but the box containing the statue was marked, according to one witness, either “ marble statuary ” or “ marble figure,” or “ statuary,” “ handle with care, this side up,”'
We think the plaintiff was entitled to a submission of the cause to the jury upon the questions of waiver, of fraudulent concealment, and of the defendant’s negligence, and the judgment must be reversed and a new trial granted, with costs to-abide the event.
All concur, except Finch, J., not voting.
Judgment reversed.