
    Emanuel A. Campe, Respondent, v. Levi C. Weir, as President of The Adams Express Co., Appellant.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Common carrier — Liability for gross negligence in handling violin.
    Where a common carrier, which has often safely transported a certain violin when inclosed only in its case, requests its consigno to inclose it also in an additional crate before a further shipment, a both the crate and violin arrive at their destination damaged broken, the facts raise a presumption of gross negligence in handling which, when not rebutted, entitles the consignor to recover the valm of the violin from the carrier.
    Appeal from a judgment in favor of the plaintiff, rendered ir the Municipal Court of the City of New York, ninth district, borough of Manhattan.
    Richard Reid Rogers, for appellant.
    William Victor Goldberg, for respondent.
   Leventritt, J.

The plaintiff recovered judgment for damages to a violin alleged to have been caused by the negligence of the defendant as a common carrier. The violin was shipped at Charlotte, N. C., via the Southern Express Company to Richmond, Virginia, and there delivered to the defendant, who completed the transportation to New York.

The contract of shipment was embraced in the usual bill of lading, and contained the following clauses: “ It is part of the consideration of this contract, and it is agreed, that the said express company * * * are not to be held liable or responsible for any loss or damage to said property * * * arising from * * * breakage or from any cause whatsoever, unless in every case the same be proved to have occurred from the fraud or gross negligence of said express company, or their servants.”

The defendant invokes the aid of this exemption to relieve it of liability on the grounds that the plaintiff failed to prove that the damage to his violin resulted from its fraud or gross negligence.

It appears from the evidence that the plaintiff had frequently shipped his violin, similarly packed, by the same carriers and between the same points, and that the instrument had always arrived uninjured.

On the occasion in question it was securely packed in a flannel or felt-lined leather case which was so padded that the violin was immovable. The shape of the case clearly indicated what it contained.

At the special request of the defendant the plaintiff inclosed the violin case in a crate, although it had previously been safely transported over the same route without this additional protection.

Upon its arrival in Hew York, one of the slats of the crate was missing, another was loosened, and, although the case was intact, the violin was cracked longitudinally along the belly and back, and the bridge was broken.

It was demonstrated on the trial that the case was of sufficient strength and that previous use had not impaired its efficacy; the plaintiff delivered a hard blow against the case with his fist; an expert packer jumped on it; the case was unaffected by either test.

On this state of facts the justice found for the plaintiff.

Whatever may he the rule in other jurisdictions, we are constrained to follow the settled rule of this state that a carrier may by special contract with the shipper limit its liability for losses resulting from its negligence. Smith v. New York Central R. R. Co., 24 N. Y. 222; Helson v. Hudson River R. R. Co., 48 N. Y. 498. In the construction of other exemptions contained in the clause, invoked notably for losses occasioned by fire, it has uniformly been held that proof that the damage resulted from the fraud or gross negligence of the carrier is a prerequisite to recovery. Lamb v. C. & A. R. R. & T. Co., 46 N. Y. 271; Cochran v. Dinsmore, 49 N. Y. 249.

There is no distinction in principle between loss or damage due to fire and loss or damage due to breakage. In all cases the burden is on the plaintiff to show that the injury arose from a cause for which by the very terms of the contract, the carrier was to be liable. Platt v. Richmond, Y. R. & C. R. R. Co., 108 N. Y. 358. Slight evidence, however, may suffice to shift the burden to the defendant, or more correctly stated, to discharge the burden, and make it incumbent on the defendant to prove that the loss was not occasioned by the causes invoked. Proof of the nature of the accident may afford prima, facie proof of negligence. Wintringham v. Hayes, 144 N. Y. 1; J. Russell Mfg. Co. v. N. H. Steamboat Co., 50 N. Y. 121; Koenigsheim v. Hamburg & American Packet Co., 17 Weekly Dig. 405.

We think that in the case at bar a prima facie case of gross negligence was established. “ Gross negligence is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term ordinary negligence, but after all, it means the absence of care that was necessary under the circumstances.” Davis, J., Milwaukee R. R. Co. v. Arms, 91 U. S. 194. There was an absence of such care in the case at bar. The defendant was apprised of the contents of the case. The violin had been frequently shipped over defendant’s line without a orate and safely carried to its destination; yet on this occasion the defendant requested the adoption of a particular form of packing, thus dictating a method of protection which it deemed sufficient.

Had the defendant itself undertaken to do the packing there could be no question as to its negligence.

Notwithstanding the demonstrated adequacy of the packing, and notwithstanding obedience to defendant’s instructions, the crate and violin arrived in such a damaged and dilapidated condition as to raise the presumption of reckless handling.- As the defendant offered no proof to overcome this presumption, the judgment of the court below should not be disturbed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent.  