
    Charles C. A. Burke, Respondent, v. Erie Railroad Company, Appellant.
    First Department,
    November 12, 1909.
    Carrier—loss of goods by fire — identity — negligence —presumption— practice — delay in transit—failure to return damaged goods promptly —bill of lading — conditions — insurance — evidence — entire contract — shipping order—pleading — effect of evidence.
    Where in an action to recover the value of certain tow delivered to and lost by a carrier, it appears that the tow was shipped on Brie box car No. 100,056 and that four days after delivery a fire occurred in Brie box car No. 100,056 at a place on the route to the point to which the toiy was consigned and damaged certain tow therein, the tow so damaged is sufficiently identified as that shipped, especially where there is no evidence that the tow was removed from the car in which it was first shipped, and it is shown that the railroad returned the damaged tow to the shipper without questioning its identity. •
    A condition in a bill of lading that the carrier shall not be liable for loss of the property or damage thereto “by floods or by fire” limits its liability to negligence.
    Where goods so shipped are damaged by fire the burden is on the shipper or consignee to show the negligence of the carrier. It will not be presumed from the occurrence of the fire.
    When both parties move for the direction of a verdict, the questions of fact are for the court.
    Where it is not shown that the Are originated in the car and its cause is wholly unexplained, negligence cannot be inferred from the fact that there was a delay in forwarding the goods so that they were transported only 136 miles in four days.
    There can be no recovery for damage caused by the unreasonable delay of the carrier in returning the damaged tow, where the value of the tow that might have been saved by prompt handling is not shown.
    Where a condition printed on the shipping order, which formed part of the contract of carriage, provided that any carrier or person liable on account of loss or of damage to the property should have the full benefit of any insurance effected thereon, it is error to exclude evidence showing that the tow was insured and that the shipper collected the insurance.
    Where on the face of the shipping order attached to the bill of lading it was twice expressly provided that it was part of the bill of lading and by express terms, the conditions on the back of the shipping order were incorporated in the bill of lading, both papers are to be read together and constitute the contract.
    Although the carrier only pleaded the bill of lading as a defense, it is entitled to the benefit of the conditions in the shipping order.
    The plaintiff having offered the shipping order in evidence, was bound by its terms.
    Appeal by the defendant, the Erie ¡Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered • in the office of the clerk of the county of New York on the 10th day of February, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 18th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      William C. Cannon [R. L. von Bernuth with him on the brief], for the appellant.
    
      Almet Reed Latson, for the respondent.
   Laughlin, J.:

This is an action on an assigned claim to recover the value of sixty-six bales of tow shipped by the Barbour Flax Spinning Company over the defendant’s railroad from Paterson, FT. J., consigned to the Smith & Dove Manufacturing Company at Andover, Mass. It was conceded upon the trial that' on the 4th day of April, 1905, the Barbour Flax Spinning Company delivered to the defendant at Paterson, FT. J., one hundred and fifty-seven bales of tow for shipment to said consignee; that ninety-one bales only were carried to the destination and delivered to the consignee, and that the remaining sixty-six bales were not delivered. It was shown that the sixty-six bales which were not delivered were shipped in Erie box car Ho. 100,056, which left Paterson, H. J., on the 6th day of April, 1905, the second day after the freight was delivered to defendant, at about five o’clock in the morning en route to Binghamton, where it was to be transferred from the defendant’s line to the Delaware and Hudson Railroad. It reached Port Jervis at ten-fifty a. m. the same day and remained there until six-fifty-five p. m. on April seventh, and reached Susquehanna at five A. m. the following day. At about eight o’clock in the evening of that day the tow in the car was discovered to be on fire. The car was then standing on a car shop track in front of the car shop in the Susquehanna west-bound yard. The fire appeared to be in the car on the top of the load near the roof. Water was applied to extinguish the fire; by the fire and water the tow was so damaged as to be ultimately of no value.

Counsel for the respondent contends that the defendant failed to show that the tow thus destroyed by fire and damaged by water was the tow which was shipped by the Barbour Flax Spinning Company. This contention is based on the ground that neither the identity of the tow nor of the car in which it was shipped was shown to be the same as that in which the fire occurred. We are of opinion that this claim is not well founded. It appears that the tow was placed in Erie box car Ho. 100,056, at Paterson, H. J., for shipment, and it appears that the fire occurred in Erie box car Ho. 100,056. It is not to be presumed that the railroad com-pony had two box cars bearing the same number. It is well known that cars are traced by their numbers, and the object of the number is to identify the car. There is no evidence showing that the tow was removed from the car in which it was placed. Moreover, it appears that the bales of tow were tagged and that thirty-eight bales of the tow, which had not been opened, and a large quantity of loose tow from bales whicli had been opened on account of the fire, were subsequently returned to Paterson, ET. J., and examined by the shipper and pronounced to be worthless without any question being raised concerning the identity of the tow.

The bill of lading which was delivered to the shipper by the carrier expressly provided on its face that the shipment was “ subject to all the conditions, whether printed or written, herein contained (see conditions on back hereof), and which are agreed to by the shipper and accepted for himself and his assigns as just and reasonable.” The first condition on the back of the bill of lading provided, among other things, that the carrier should not be liable for any loss of the property or damage thereto by floods or by' fire.” This condition limited the carrier’s liability to negligence (Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y. 271; Whitworth v. Erie R. Co., 87 id. 413; Rowan v. Wells, Fargo & Co., 80 App. Div. 31), and the rule is now well settled that in such case the burden of proof is on the shipper or consignee to show negligence on the part of the carrier- where the goods are damaged or destroyed by fire. (Lamb v. Camden & Amboy R. R. & T. Co., supra; Whitworth v. Erie R. Co., supra; Rowan v. Wells, Fargo & Co., supra.) Of course, if the carrier were shown to be responsible for the fire, it would be responsible for the damage which was caused by the water as well as for that which was caused by the fire.

At the close of the evidence both parties moved for the direction of a verdict, and thereby the questions of fact were submitted to the court instead of to the jury for determination. It is claimed on the part of the appellant that the plaintiff failed to show that the fire was caused by its negligence. The plaintiff relies principally upon the lapse of time between the date of shipment and the fire, which was unexplained, and contends that negligence might be inferred therefrom owing to the fact that the goods had only been transported a distance of about 136 miles. If the fire had not originated in the car there would be ground for this contention, but we are unable to find any evidence in the record tending to show that any delay in the shipment or transportation caused the fire. Theré is no evidence of the description of the car other than the statement that it was a box car, and it does not appear whether or not it was sealed. There is no evidence as to whether sparks or coals of fire could enter the car from outside. In fact the cause of the fire is wholly unexplained. Where freight is damaged or destroyed by fire, there is no presumption that the carrier is guilty of negligence, but some facts or circumstances tending to show negligence or from which negligence may fairly be inferred, must be shown by the plaintiff. (Whitworth v. Erie R. Co., supra; Rowan v. Wells, Fargo & Co., supra.) In the Whitworth Case (supra) there is an intimation that it might be sufficient to show that it was within the power of the defendant to explain the origin of the fire, but even such, evidence was not presented here. There is evidence indicating that some of the damage was caused by unreasonable delay on the part of the carrier in returning the wet and damaged tow to the shipper, but the value of the tow that might have been saved by prompt handling has not been shown.

We are also of opinion that the court erred in excluding evidence duly offered to show that the freight was insured by the shipper and that it collected the insurance thereon. It appears that the railroad company furnishes its customers with printed shipping orders and bills of lading in blank on two sheets of paper attached together, but the line between them being perforated. Both of these blanks were filled out by the shipper and presented to the carrier, whose agent separated them, retaining the shipping order and delivering the bill of lading proper to the shipper. At the head of the shipping order was printed the following:

“ The shipper may elect to accept the conditions printed on the back hereof and as contained in the Bill of Lading of which this Shipping Order is a part, or may, as provided below, require the carriage of property at Carrier’s Bisk,’ ” and below this was a blank for the date and then a direction to the carrier to “ Beceive, carry and deliver the articles described below, .in accordance with the classification in effect at the date of this order and subject to the conditions of the Bill of Lading of which this Shipping Order is a part. (For.Carrier’s Liability see note below.)” Underneath this direction the shipping order contained a blank for the description, marking and weight of the freight, and underneath that it provided in a printed note as follows :
“Note.—-Unless otherwise provided in the classification, property will "be carried at the "tariff rates, if shipped subject to the conditions of the Uniform Bill of Lading.
“ If the shipper elects not to accept the said tariff rates and conditions, he should so notify the Agent of the receiving carrier at-the time his property is offered for shipment, and if he does not give such notice it will be understood that he desires his property carried subject to the Uniform Bill of Lading conditions in order to secure the reduced class rates thereon. Property carried not subject to the conditions of the Uniform Bill of Lading will-be at the carrier’s liability, limited only as provided by Common Law and by the Laws of the United States and of the several States, in so far as they apply. Property thus carried will be charged twenty per cent higher (subject to a minimum increase of one cent per one hundred pounds) than if shipped subject to the conditions of the Uniform Bill of Lading, and the cost of Marine Insurance will be added over any part of the route that may be by water.”

The last sentence of the third condition printed on the back of the shipping order was as follows: “ Any carrier or party liable on account of loss of or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property.”

The bill of lading proper likewise contained numerous conditions printed on the back, in fact the same number of conditions, and like those on the shipping order, they were headed : “ Uniform Bill of Lading Conditions ; ” but this condition with respect to insurance, already quoted,.was not in the conditions on the bill of lading proper

Counsel for the respondent contends that the conditions printed on the back of the shipping order formed no part of the contract, because they were not incorporated in the bill of lading. The plaintiff offered both papers in evidence.

"We are of opinion that the shipping order and the bill of lading proper are to be read together and together constitute the bill of lading and contract, for it is twice expressly provided on the face of the shipping order that it forms a part of the bill of lading, and by express terms the conditions on the back of the shipping order were incorporated therein. The shipper elected to accept the low tariff rate hy filling out the shipping order and accepting the bill of lading at a rate for freight transportation, which was twenty per cent lower than it would have been obliged to pay had it desired to hold the carrier to its common-law liability. It is further claimed" that the carrier is not entitled to the benefit of the provisions of the shipping order, because it only pleaded the bill of lading as a defense, although it expressly pleaded this provision of the shipping order as contained in the bill of lading, and the court denied its motion to amend its answer by pleading the shipping order as well. We are of opinion, for the reasons already assigned, that it was entitled to the benefit of the shipping order as part of the bill of lading. Moreover, the plaintiff having offered the shipping order in evidence was bound by its terms, and defendant was entitled to the benefit thereof. (Jonasson v. Weir, 130 App. Div. 528; Springer v. Westcott, 78 Hun, 365.) We are of opinion, therefore, that the carrier in any event was entitled to the benefit of any insurance held by the shipper on the freight to the extent of its liability.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

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