86 N.Y.S. 911 | N.Y. App. Div. | 1904
The plaintiff proved that when the trunk was delivéred to the Delaware, Lackawanna and Western Railroad Company its contents
But the evidence is sufficient to hold the judgment against the Long Island Railroad Company. For the plaintiff prima facie proved that the trunk was delivered to the express company in its original condition when he showed that, after taking its check for that purpose, the express Company received it from the Delaware, Lackawanna and Western Railroad Company, the latter fact being proved, by the delivery of the trunk to the plaintiff. (Springer v. Westcott, supra.) The Long Island Railroad Company offered no evidence against this prima facie case. . There is no hardship in "this doctrine viewing the relative positions, of the traveler and the expressman, for the latter had full opportunity to inspect and to examine the trunk when it took it from the receiving station of the Delaware, Lackawanna and Western Railroad Company, and if it received the trunk from that company in a damaged condition, it could at least have offered testimony to that effect. On the other hand, the traveler, under the circumstances, is entirely at a loss to prove specifically any act of commission or omission on the part of the express company. Therefore, the burden is well placed upon
I am of opinion that the receipt read in evidence does not limit the liability of the company. W hen a traveler delivers luggage to the agent of an express or a transfer company, and at the moment receives and accepts a paper that “ amounts simply to a voucher ’ which he may use to trace and identify his luggage, no contract arises therefrom as a matter of law whereby the liability of the company is limited in accord with the- terms and conditions expressed in such paper. (Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y. 460, approving Grossman v. Dodd, 63 Hun, 324 ; Springer v. Westcott, supra.) In Grossman v. Dodd (supra) the court, per O’Brieit, J., after discussing the rule, say: “ The question whether, in a particular case, the party receiving such a receipt accepted it with notice of- its contents, or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its content's, is one of evidence to be determined by the jury. It will thus be seen that no such contract arises, as a matter of law, from the acceptance, of the receipt, but the defendant in order to relieve itself from full liability is bound to establish a contract. (Sunderland v. Westcott, 40 How. Pr. 469 ; Blossom v. Dodd, 43 N. Y. 264 ; Rawson v. Penn. R. R. Co., 2 Abb. [N. S.] 220 ; Limburger v. Westcott, 49 Barb. 283.)” (See, too, Rosenthal v. Weir, 170 N. Y. 148.) There is proof to warrant the finding that the plaintiff neither read the receipt nor had his attention called to it. In the absence'of all other evidence, I think that it cannot be held that the liability of the expressman is limited by the terms of the receipt.
The judgment as to the Delaware, Lackawanna and Western Railroad Company should be reversed and a new trial be ordered, costs to abide the event; as to the Long Island Railroad Company, the judgment should be affirmed, with costs.
All concurred,
Judgment of the Municipal Court as to the Delaware, Lackawanna and Western Railroad Company reversed and new trial ordered, costs to abide the event; as to the Long Island Railroad. Company, judgment affirmed, with costs.