
    James Morris, Appellant, v. Levi C. Wier, as President of The Adams Express Company, Respondent.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. Common carriers — Stipulations against their own negligence.
    However broad or general may be the language of a contract which does not specifically and in express terms release a. carrier from the consequences of its own negligence, it will not effect such release, if the general words may operate Without including such negligence.
    2. Same — Goods improperly packed.
    Where, however, a person ships a demijohn of whisky, packed in an ordinary champagne case, an unusual method for the packing of a demijohn, and there is nothing to indicate to a carrier the unusual nature of the contents of the champagne case, and the receipt of .the carrier, among other things, stipulates that all articles of glass will be taken at the risk of the shipper who agrees that the carrier shall not be" held responsible for breakage or otherwise, nor for damage to goods not properly packed, the question whether the demijohn was properly packed is one of fact, and where it is resolved unfavorably to the shipper, the carrier is not liable to him for a breakage which occurred in the transit.
    Appear by the -plaintiff from a judgment of the justice of the Third District Court in favor of the defendant.
    
      George E. Gartland, for appellant.
    C. A. Gersdorff, H. S. Marshall & Seward, Guthrie & Steele, for respondent.
   Daly, P. J.

The plaintiff shipped a demijohn, containing two gallons of whisky of the value of $18, by defendant’s express company from New York to Ridgefield, Connecticut. The demijohn was packed in an ordinary champagne case and when delivered was found to be broken and the contents were gone. The defendant claims exemption from liability under certain clauses of its shipping receipt which provided, (1) that it should not be liable for breakage unless proved to have occurred through its fraud or gross negligence; (2) and that all articles of glass would be taken at the risk of the shipper and that the latter agrees that the company should not be held responsible for breakage or otherwise nor for damage to goods not properly packed.

Neither provision of the shipping receipt relieved the company from liability for its own negligence. The first expressly excepts negligence and the second is silent on the subject. “However broad or general may be the language of the contract which does not specifically and in express terms release the carrier from the consequences of his own negligence, it will not effect such release, if the general words may operate without including such negligence.” Holsapple v. R., W. & O. R. R. Co., 86 N. Y. 275; Jennings v. G. T. R. R. Co., 127 id. 438-447; Tucker v. P. R. R. Co., 12 Misc. Rep. 117.

As neither of the provisions of the receipt relieved the company from liability for its own negligence, the plaintiff claims that, under the proof, he was entitled to a recovery. The justice, when all the evidence was in, gave judgment for defendant. A prima facie case of negligence at most was made out by evidence of the breaking of the demijohn inclosed in a champagne box. The delivery of the goods by the carrier in a damaged condition raised the presumption that the damage was done by the carrier’s act or default. “ Where the accident is one which in the ordinary course of events would not have happened but for- want of proper care on the part of the defendant, it is incumbent upon him to show that he had taken such precautions as prudence would dictate, and his failure to furnish the proof, where, if it existed, it would be within his power, may subject him to the inference that such precautions were omitted.” J. Russell M. Co. v. N. H. S. Co., 50 N. Y. 121.

But, under the provision of the shipping receipt above mentioned, there was a question of proper packing of the goods for transportation. IJpon that point a witness for the defendant' testified that the demijohn was not packed in the usual way that demijohns are put up; that it was not in a demijohn box, but a wine case, an ordinary claret case, not suitable for a demijohn. The .'plaintiffs witness admitted that there was a regular form of demijohn box, but claimed that it was not as safe as packed in a champagne box. The justice was called upon to decide the question of proper packing, and upon the testimony his judgment cannot be disturbed. A champagne case or claret case is intended to hold "bottles of wine and might be safely handled in a manner which would not be prudent, if the contents of the box, instead of being wine in one or two dozen bottles, were simply a two-gallqn demijohn which might be broken by.being placed, or carried, upside down, the whole weight resting upon the neck, and subjected, when so carried, to a jar sufficient to break it, although too slight to injure bottles of wine as ordinarily packed. "As there was nothing" to indicate to defendant the unusual nature of the contents of this wine case, so as to prevent its being subjected to unnecessary risks, it was, under the circumstances, a question for the justice whether the goods had been properly packed for shipment. We áre not warranted in holding .that his decision was against the weight of evidence.

Judgment affirmed, with costs.

McAdam and Bisohoff, JJ., concur.

Judgment affirmed, with costs.  