
    Selah B. Strong, Respondent, v. The Long Island Railroad Company and The Delaware, Lackawanna and Western Railroad Company, Appellants.
    
      Injury to a trunk—presumption where delivery is shown in good condition to one common carrier who delivers it to another — burden of proof— receipt containing limitations of liability.
    
    In an action brought against the Delaware, Lackawanna and Western Bailroad Company and the Long Island Bailroad Company to recover damagbs for injuries to articles contained in a trunk owned by the plaintiff, the latter proved that he delivered the trunk with its contents in perfect condition to the Delaware, Lackawanna and Western Bailroad Company and saw it placed on a train which arrived in Hew York at twelve-fifteen p. M. On July second ; that at three-thirty p. m. on that day it was delivered by the Delaware, Lackawanna and'Western Bailroad Company to the Long Island Bailroad Company, in the latter’s capacity as an expressman; that the trunk was delivered on the afternoon of July third and that the contents thereof were then wringing wet,
    
      jBeld, that the plaintiff having proved that the contents of the trunk were in perfect condition when it was delivered to the Delaware, Lackawanna andWestern Bailroad Company, the presumption Was, there being no evidence to the contrary, that this condition continued while it was in the possession of that company; ,
    That the burden rested upon the Long Island Bailroad Company to show that it delivered the trunk in the condition in which it received it;
    That a receipt for the trunk given by the Long Island Bailroad Company to the plaintiff, which it appeared that he neither read, nor had his attention called to, did hot operate to limit the liability of the Long Island Bailroad Company in accordance with the terms and conditions expressed therein.
    Appeal by the defendants, The Long Island Railroad Company and another, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 26th day of September, 1903..
    
      Louis Hess, for the appellant, The Long Island Railroad Company.
    
      W. S. McGuire, for the appellant, The Delaware, Lackawanna and Western Railroad Company.
    
      Selah B. Strong, in person [Charles M. Bleecker with him on the brief], for the respondent.
   Jenks, J. :

The plaintiff proved that when the trunk was delivéred to the Delaware, Lackawanna and Western Railroad Company its contents were in perfect condition. The presumption is that that condition continued while it was in the possession of that company. (Springer v. Westcott, 2 App. Div. 295 ; 19 id. 366 ; affd., 166 N. Y. 117.) There is no evidence to overcome this presumption. The Long Island Railroad Company, the expressman, did not offer any evidence whatever. The plaintiff testifies that the trunk was placed on a delivery wagon at a hotel in Mount Pocono, and that he went with the trunk to the railroad station at that place, checked it to New York, and saw it put on the train which arrived in New York at twelve-fifteen p. m. on July second, and he does not testify to any matter which would tend to show that such damage was or could have been done while the trunk was in the possession of the said railroad company. Moreover, the plaintiff did not express the ‘ trunk by the Long Island Railroad Company until three-thirty p. m. of that day; it was not delivered by that company until the afternoon of July third, and if the articles were in a wringing wet condition on the morning of July fourth, this fact would tend to show, if anything, that the damage by water was comparatively recent. The judgment against the Delaware, Lackawanna and Western Railroad cannot be sustained.

But the evidence is sufficient to hold the judgment against the Long Island Railroad Company. For the plaintiff prima facie proved that the trunk was delivered to the express company in its original condition when he showed that, after taking its check for that purpose, the express Company received it from the Delaware, Lackawanna and Western Railroad Company, the latter fact being proved, by the delivery of the trunk to the plaintiff. (Springer v. Westcott, supra.) The Long Island Railroad Company offered no evidence against this prima facie case. . There is no hardship in "this doctrine viewing the relative positions, of the traveler and the expressman, for the latter had full opportunity to inspect and to examine the trunk when it took it from the receiving station of the Delaware, Lackawanna and Western Railroad Company, and if it received the trunk from that company in a damaged condition, it could at least have offered testimony to that effect. On the other hand, the traveler, under the circumstances, is entirely at a loss to prove specifically any act of commission or omission on the part of the express company. Therefore, the burden is well placed upon the express company to show that it delivered the .trunk in the condition in which it received it.

I am of opinion that the receipt read in evidence does not limit the liability of the company. W hen a traveler delivers luggage to the agent of an express or a transfer company, and at the moment receives and accepts a paper that “ amounts simply to a voucher ’ which he may use to trace and identify his luggage, no contract arises therefrom as a matter of law whereby the liability of the company is limited in accord with the- terms and conditions expressed in such paper. (Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y. 460, approving Grossman v. Dodd, 63 Hun, 324 ; Springer v. Westcott, supra.) In Grossman v. Dodd (supra) the court, per O’Brieit, J., after discussing the rule, say: The question whether, in a particular case, the party receiving such a receipt accepted it with notice of- its contents, or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its content's, is one of evidence to be determined by the jury. It will thus be seen that no such contract arises, as a matter of law, from the acceptance, of the receipt, but the defendant in order to relieve itself from full liability is bound to establish a contract. (Sunderland v. Westcott, 40 How. Pr. 469 ; Blossom v. Dodd, 43 N. Y. 264 ; Rawson v. Penn. R. R. Co., 2 Abb. [N. S.] 220 ; Limburger v. Westcott, 49 Barb. 283.)” (See, too, Rosenthal v. Weir, 170 N. Y. 148.) There is proof to warrant the finding that the plaintiff neither read the receipt nor had his attention called to it. In the absence'of all other evidence, I think that it cannot be held that the liability of the expressman is limited by the terms of the receipt.

The judgment as to the Delaware, Lackawanna and Western Railroad Company should be reversed and a new trial be ordered, costs to abide the event; as to the Long Island Railroad Company, the judgment should be affirmed, with costs.

All concurred,

Judgment of the Municipal Court as to the Delaware, Lackawanna and Western Railroad Company reversed and new trial ordered, costs to abide the event; as to the Long Island Railroad. Company, judgment affirmed, with costs.  