#### Esther Aaronson, Respondent, *v.*The Pennsylvania Railroad Company, Appellant.

(Supreme Court, Appellate Term,

June, 1898.)

Common carrier — Liability as warehouseman — Receipt not qualifying liability — Unexplained loss.

A common carrier delivered to the owner, of a properly closed valise, a shipping receipt stating, among other things, “ Property not removed by the person or party, entitled to receive it, within twenty-four hours after its arrival at destination, may be kept in the car, depot, or place of delivery of the carrier at the sole risk of the owner of said property.” When, eighteen days after its arrival,'" the owner deceived and opened the valise, its contents were gone! The carrier offered no explanation of the loss, but showed that the valise had *667been carried in a sealed car, whose seals were not broken when it arrived, and that all the goods oí the car were placed upon arrival on the floor oí a dock, which had been well guarded.

Held, that the carrier was liable as a warehouseman, for the unexplained loss.

That the terms of the shipping receipt did not relieve it from its-liability as a warehouseman.

Appeal from a judgment of the Eifth District Court, in favor of the plaintiff.

Robinson, Biddle & Ward, for appellant.

J. J. Harris, for respondent.

Gildersleeve, J.

The plaintiff, on November 19, 1897, delivered to thfe agents tof defendant a valise, containing articles of the value, as found by the trial justice, of $40, to be sent as freight from Philadelphia to New York by the defendant. Some eighteen days afterwards, she went to the company’s place in New York, and made a demand for the valise, which was delivered to her by defendant’s agents; but, upon opening it, upon such delivery, she discovered that the contents, contained therein, at the time of sending, had disappeared. The testimony shows that the valise was in good condition and properly closed, when it was delivered to the defendant; that it was sent right through to New York, and was stored on the defendant’s dock “put on the floor on the dock.” The shipping receipt, delivered by defendant to plaintiff in Philadelphia, at the time of sending the valise, contained this condition, viz.: *“*5. property not removed by the person or party, entitled to receive it, within twenty-four hours after its arrival at .destination, may be kept in the car, depot, or place of delivery of the carrier, at the sole risk of the owner of (said property.”

The court having refused to dismiss the complaint at the conclusion of plaintiff’s case, the defendant offered evidence tending to show that the valise was carried in a sealed car, and that immediately before the discharge, at defendant’s pier in New York, the seals were found to be intact; that this valise, so far as 'J.ohn Ryan, who discharged the goods, can remember, and so far as the tally, defendant’s Exhibit 1, indicates, ¡was apparently in good order, when removed from the car; that the goods, unloaded from trains, *668•are placed on the floor on the dock; that a watchman is kept on the dock, one on each pier and a mian on the floats; that a watchman ¡is kept at the entrance of the dock to check what goes out. It must be said, from the foregoing facts, that the-loss occurred after the defendant had ceased to be a carrier, and had become a warehouseman. Fairfax v. R. R. Co., 67 N. Y. 14. The duty, therefore, of defendant was reasonable care in the protection of the goods. Claflin v. Meyer, 75 N. Y. 260.

The principles of law applicable to this case are found in the following authorities, viz.:

In the case of Wynantskill Knitting Co. v. Murray, 90 Hun, 555, it is held that “.After the lapse of a reasonable time for the consignee to remove the goods, the liability of the carrier as such ceases,. ' and, if he is responsible thereafter, it is as- a warehouseman.”

In the case of Fairfax v. N. Y. C. R. R. Co., 67 N. Y. 14, Judge Rapallo used the following language: “ it clearly appears that the portmanteau was taken in charge by the defendant and transported to Hew York, and there deposited by it in its baggage-room. The defendant thus incurred the responsibility of a warehouseman, at least, without regard to the question * * * whether it became liable as a common carrier. When the plaintiff demanded the article it had* disappeared^ and no account' is given of the cause of such disappearance. This is *prima facie*evidence of negligence. * * ** 1*The proof of the general care, with which the baggage-room and its contents were guarded, was not sufficient to establish conclusively that there was no want of care in this particular instance.”

In the case of Kaiser v. Latimer, 9 App. Div. 36, it is held that “ A warehouseman, iñ the absence of bad faith, is hable only for negligence. The general rule is that the burden of proof remains where the issue made by the pleadings places it. A failure upon the part of a bailee to deliver to a bailor Ms property, on demand, raises a presumption of liability, but this presumption is *primia facie*only, and may be overcome by-¡evidence; and where it appears that the loss was caused by some accident, the *onus*rests upon the bailor to prove that such accident was caused by (the want of care upon the part of the bailee.” ■ It is further held that, although the plaintiff-had made out a *prima facie*case, (when he proved the defendant’s failure to deliver the goods on demand, yet, as the basis of the plaintiff’s cause of action was the ¡defendant’s negligence, the *669burden of proving such, negligence rested upon the plaintiff, throughout the trial.

In the case of Stewart v. Stone, 127 N. Y. 501, it is held that, *“*While, as a general rule, when a bailee fails on demand, to deliver to the bailor property to which the latter is entitled, the presumption of liability arises, and, if the goods cannot be found it furnishes the imputation of negligence as the cause. But such *prima facie*case may be overcome when it is made to appear that the loss was occasioned by some misfortune or accident, not within the control of the bailee; and then the *onus*continues upon the bailor to prove that it was chargeable to the want of care of the bailee.”

In the case of Claflin v. Meyer, 75 N. Y. 260, it is held that *“*In an action against a warehouseman for refusal to deliver goods entrusted to him, where the refusal is explained ¡by the fact appearing that the goods were lost by a burglary, the burden is upon the plaintiff to establish affirmatively that the burglary was occasioned by, or was not prevented by reason of, some negligence or omission of due care on the part of defendant; the court will not assume, in the absence of proof, that the loss was the result of his negligence.” It is further held in this case that “ The warehouseman, in the absence ¡'of bad faith, is only liable for negligence, and one, bringing an action against him for the loss of goods must allege and prove negligence; this burden is never shifted; if plaintiff prove demand and refusal to deliver this unexplained is *.pri/ma fade*evidence of negligence; but if it appear that the goods have been lost by theft, plaintiff must show that the loss arose from the negligence of the defendant.”

In the case at bar, we find, as above indicated, that after plaintiff had established a *prima facie*case of negligence on the part of the defendant, by proving the delivery of the valise and its contents to defendant, the demand for the same, and the failure, of the defendant to deliver the contents, the defendant undértook to explain. It showed, as we have seen, the customary precautions taken to guard against loss; that the valise came from Philadelphia to Hew York, and was delivered at the dock] of the company in apparently good condition. But no affirmative explanation whatever is given for the disappearance of the contents of the valise. It is not shown affirmatively that there was a loss by theft or by -accident or by fire or by any other specified cause. -Its explanation is that the goods are gone, and that it is unable to deliver them on plaintiff’s demand; *670but the cause for the disappearance of the goods is left entirely to conjecture. The proof of the general care, with which baggage is guarded by the defendant, is not sufficient to establish conclusively that there was no want of care in'this particular instance. See Fairfax v. R. R. Co., *supra*. It seems to us that the defendant has entirely failed to explain the loss or rebut the presumption of ."negligence on its part that was created by the plaintiff’s testimony. The assertion by the defendant ¡of the loss, without proof of some facts tending to show that the loss was occasioned by some-misfortune or accident, not within the control of defendant, does not .place upon plaintiff the *onus*of establishing defendant’s want of care, beyond the presumption that arose, as we have already said, ..at the conclusion of plaintiff’s ease. Otherwise stated, the defendant showed no specific circumstances of loss, in respect of which it became the duty of plaintiff to show want of care on the part of defendant. The plaintiff fully sustained the burden of proof required under the circumstances. -

It is urged by counsel for defendant that the liability of defendant in this case is qualified by the clause in the shipping receipt, above quoted; and that such stipulation, although not exonerating defendant from liability for its negligence, imposed upon plaintiff the burden of showing .affirmatively that defendant was guilty of negligence. See Gleadell v." Thomson, 56 R. T. 197; Steinweg v-. Erie. R. R. Co., 43 id. 123; Lamb v. Camden, etc., R. R. C'o., 46 id, 272; Canfield v. B. *&*0. Ry. Co., 93 id. 532. ■ We have already seen that the liability of the defendant in this case is that of a warehouseman, .and that from plaintiff’s evidence a presumption of defendant’s negligence arose. This presumption has not been re-butted by defendant, and its want of care Was, therefore, affirmatively established. The clause in question in the shipping receipt cannot be said to have relieved defendant from ■ its liability as a warehouseman.

The judgment should be affirmed, with costs.

Beekmah, P. J., and Gieg-erich, J., concur.

Judgment affirmed, with costs.