Hirsch v. New York Central & Hudson River Railroad , 99 N.Y.S. 431 ( 1906 )

Davis, J.

This action was brought to recover $325.49 for damage to certain bundles and rolls of manila paper delivered to the defendant June 16, 1903, by the plaintiffs at Lyons Falls, New York, for shipment to the New York and Pennsylvania Company, New York city. Upon the order of the consignee the bundles and rolls were delivered by the defendant at the dock of the Panama Steamship Company, pier 57, North river. The final destination of this paper was Los Angeles, Cal.; and, on its arrival at Los Angeles, it was found to be in a badly damaged condition. The extent of the damage was testified to by the president of the consignee at Los Angeles. In his deposition this witness says that the paper was badly soiled and looked as if it had been in the hold of a vessel with lamp black, coal or some other black substance piled on top of it; that the bundles were torn open and sheets scattered about in the car; the roll paper was hadly crushed, the ends knocked out, chafed, and most of the wooden spools which held the rolls in shape were lost. The defendant claims that the evidence fails to show that the damage occurred on its line of railroad. The only evidence produced by the plaintiffs to show that the damage complained of was caused while the property was in transit on the defendant’s line is a receipt by the Panama Eailroad Company purporting to be issued to the defendant on July 21, 1903, which receipt contains the statement: “ Bdls., covers torn, ends exposed.” Concerning this receipt a witness, Clark, called by the plaintiffs, testified that in July he was in the employ of the Panama Steamship Company; that the receipt referred to is a carbon copy signed by him; that he himself did not make out the receipt, but that it was made out by a party now dead, whose handwriting he recognized. He further testified that he presumed that the original was given to the shipper. Upon this testimony the receipt was admitted in evidence over the objection of the defendant. On cross-examination he said he knew nothing whatever about the condition of the paper when it was delivered to the Panama company; that in fact he had never seen the property. On redirect examination he said that in all cases it was customary for the company to insert the condition of the goods in the bill of lading if they were not in perfect order. The plaintiffs’ case thus rested upon the testimony taken in Los Angeles and that of the witness Clark. The statement in the receipt of the Panama Eailroad Steamship Company is not competent as evidence that the damage complained of occurred on the defendant’s line. Moreover, the alleged imperfect condition of the paper as noted in the receipt is obviously not the damage testified to by the witness in Los Angeles and for which damage the recovery was had, as a comparison between the two statements of damage readily shows. In view of the testimony of the defendant’s witnesses, Hillery, Kline and Matthews, each of whom saw the paper when it was delivered to the Panama company and each of whom testifies that the paper was then in good condition, it seems clear that the evidence fails to show any damage to the property while on the defendant’s line, but, on the contrary, points rather to the conclusion that the damage was caused after the property left the defendant’s possession and on some other of the lines over which it was transported in going to Los Angeles. As defendant’s liability ended when the property left its possession, we think the plaintiffs failed to make a case and that the judgment and order appealed from should be reversed.

Gildebsleeve and Clinch, JJ., concur.

■ Judgment and order reversed and new trial ordered, with costs to appellant to abide event. ...