84 N.Y.S. 175 | N.Y. App. Term. | 1903
Plaintiff sued for damages to her household goods, consisting of linens and clothing, contained in a hamper, delivered to the Pennsylvania Railroad Company for shipment from
As against the Pennsylvania Railroad Company there is no evidence whatever of any negligence. Although it had the right to run its trains over the tracks of the New York & Long Branch Railroad Company, the contract between the two companies expressly provides that the New York & Long Branch Railroad Company shall be held liable for any damages done by the neglect or misconduct of its own employés. There is nothing in the case upon which it can be held that the New York Sc Long Branch Railroad Company acted simply as the agent of the Pennsylvania Railroad Company. The latter company discharged its duty to the plaintiff when within a reasonable time it carried and delivered plaintiff’s goods to and at the freighthouse of the other company in the same condition in which they were received', and the evidence affirmatively shows that at no time was plaintiff’s hamper exposed to the weather while in the possession of the Pennsylvania Railroad Company. The judgment against said company cannot, therefore, be sustained.
As against the New York & Long Branch Railroad Company a different case is presented. The freighthouse at .Elberon was under its control and management, and plaintiff’s hamper was kept there for about 19 days. The delay was not the proximate cause of the injury, if the hamper was properly protected in the meantime, especially if, as was held by the trial judge, no notice of arrival was necessary to be given to the plaintiff under the laws of New Jersey. The liability of .the New York Sc Long, Branch Railroad Company to the plaintiff was that of a warehouseman, and the case against it comes down to the question whether it negligently permitted plaintiff’s hamper to become wet. The mere fact of injury creates of itself no presumption of negligence, but affirmative proof is necessary to
Upon the case as it stands, a verdict should have been directed in favor of the defendants.
The judgment and order appealed from should be reversed as to both defendants, and a new trial ordered, with costs of this appeal to each of them to abide the event. All concur.