Lowenthal v. Pennsylvania Railroad , 151 N.Y.S. 916 ( 1915 )

PENDLETON, J.

The action is brought by a consignee in a bill of lading for damages alleged to have been suffered by reason of defendant’s failure to deliver the goods in accordance with what is shown as a “diversion order,” delivered by plaintiff to defendant while the goods were in transit.

The diversion order is in writing, and expressly provides that the defendant is to act in the transaction as agent for the plaintiff, the consignee, and “shall not be liable for any damages resulting from any failure to carry out our request, unless such failure be the result of gross negligence on its part.” There was no evidence of gross negligence. The provision above quoted manifestly meant something more than failure to comply with the request, and proof, therefore, of failure to deliver, alone, was not sufficient to impose liability.

Judgment affirmed, with costs. All concur.