Martin v. Delaware, L. & W. R. , 1913 N.Y. Misc. LEXIS 1276 ( 1913 )

PER CURIAM.

The only serious dispute in this case is over the charge of $25.20 for repacking 252' cases of undamaged eggs. In May, 1911, 297 cases of eggs were shipped by the Delaware, Lackawanna & Western Railroad to G. W. Martin & Bros., °/0 Merchants’ Refrigerating Company, Jersey City. When the car arrived, 11 cases were found broken, and upon examination of 20 unbroken cases, taken promiscuously from various parts of the car, 17 showed top breakage. Thereupon 252 of the cases, which showed no external damage, and which upon being opened indicated no internal damage, were repacked at a cost of $25.20. /

That the railroad company is liable for the broken and cracked eggs and damaged cases is evident; but it is not liable, upon the evidence in this case, for the repacking of undamaged goods. That eggs might be broken in transit without the external boxing showing any injury is established by the facts in this case. Would a consignee be justified in repacking eggs at the expense of the carrier, where there was no external evidence of breakage, in order to ascertain whether the eggs were cracked before he put them in storage? And, if not, would he be justified in so doing if one box or crate of a large shipment showed external injury?

The difficulty of fixing upon the fact to justify such repacking at the carrier’s expense is quite evident. . The rule must be, in order to bring liability within proper and practical limits, that the carrier is liaable for the injury caused, and not for expenses to ascertain whether injury has been caused. Of course, these statements are confined to the facts as they are established in this case, as the evidence shows no other necessity for repacking, except the desire to ascertain injury. The judgment herein is therefore modified, by deducting $25.20, the expense of repacking 252 cases of eggs, less $2.26 interest, making a total of $27.46. As thus modified, the judgment for the plaintiff is affirmed, without costs to either party.