Foley v. Lehigh Valley Railroad

MacLEAN, J.

On a former appeal it was said: “The evidence did not justify a judgment against the defendant.” 92 N. Y. Supp. 1123. On this, the second appeal herein, it may be further remarked that the statement in the bill of lading issued by the defendant that the carload of cabbages, shipped from Gorham to New York, was received in apparent good order, was but prima facie evidence of the fact, casting the burthen of proving it otherwise upon the party making it, and did not preclude the introduction of parol evidence to establish the contrary fact (Ellis v. Willard, 9 N. Y. 529) ; and the evidence of one Flanagan that he saw the cabbage both before and when it was loaded into the car, that it was frozen solid in the fields before it was cut and when it was loaded into the car, frozen to the heart, and that he cut several heads and they were red, coupled with the fact that the plaintiffs in their letter of December 10, 1903, stated that they “bought frozen stock,” together with other evidence relating to transportation, and dispute as to its condition when it reached its destination, would justify the trial justice in rendering judgment in favor of the defendant, and his determination must stand.

Judgment affirmed, with costs. All concur. „