
    Frank B. Lyon, Resp’t, v. Western New York and Pennsylvania Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    EvinrowoB — Pabol
    ’Where, in an action for injury to goods in transitu, the hill of lading does not specify the kind of car, the shipper may show that the company agreed to carry the goods in a ventilated car, and that the injury resulted from failure to do so.
    Appeal from a judgment of the county court, reversing a judgment recovered in justice’s court.
    
      Allen J. Hastings, for app’lt; Frank M. Todd, for resp’t.
   Lewis, J.

— The plaintiff, on the 8th day pf. July, 1889, at the village of Cuba, shipped by the defendant’s road 9Ó0 dozen of eggs, consigned to a firm at Wilkesbarre, Pa., which the defendant, for . value received, agreed.to transport with reasonable dispatch, and deliver to plaintiff’s consignees at Wilkesbare, in the state of Pennsylvania. Plaintiff claimed that the defendant failed to perform its agreement with reasonable dispatch, and, in consequence of such negligence, eggs, when delivered, were in a -decayed and broken condition, to plaintiff’s damage. The evidence as returned by the justice is very brief and fragmentary, and fails to give a very satisfactory statement of what occurred upon the trial. It is conceded by the pleadings that the defendant received the eggs from the plaintiff, ’and agreed, for a consideration, to transport them as stated above. 'The defendant gave evidence tending to show that it delivered the eggs with reasonable. dispatch to the Delaware, Lackawanna & Western Railroad Company, a connecting common carrier, and claims that, if the eggs were injured by delay in their delivery, it was the result of the negligence of the-Delaware, Laokawaoua. & .Western Railroad Company, and not-of the defendant.

The justice’s return; contains what purports to be a copy of a bill, of lading, delivered, to the plaintiff, at the-time of the shipment of the eggs. We assume that, the copy returned: was the one testified to by the defendant’s agent, although the justice^ return fails to so stafe. Upon- the copy thus returned appear to be- some letters, words, and, figures whicbare.claimed by the- defendant to mean that the defendant’s contract was to deliver the eggs to. the connecting ^oad mentioned, The testimony fails to,expain the meaning of the figures and letters referred, to^ and- without some explanation, we. are not informed as to-, their meaning. The plaintiff’s evidence tended to. show that he filled out at. the- time of the shipment a blank bill of lading furnished him by the defendant’s agent, and that one copy thereof, was. delivered to- him; that at the time.it was delivered to him, it did not contain the letters, words, and figures.referred to,, but that they must have been inserted by the agent or some-other.-official of- the defendant after the, execution and delivery of the bill of lading, and after the shipment of the eggs,. The evidence, does not appear from the-justice’s return to. have- been contradicted-.. The defendant haying admitted by its answer.that it agreed, to transport the eggs to. Wllkesbarre, it was liable-for- damages caused-by- the negligence of its, connecting road. Jennings v. Grand Trunk Railroad, Co., 127 N. Y. 438; 40 St. Rep. 318.

The plaintiff testified that the defendant agreed to transport the eggs fn a ventilated,car,, and; that it failed .so, to, do, and after that the injury to. tfiei eggs resulted -in, part- from their being shipped in a common, iinventilated, car. The objection, of the defendant that this testimony was inadmissible, for- the reason that it tended to vary or contradict the. terms of the bill of lading, was not,-we think well taken,. There was nothing in the copy of the instrument returned, stating th,e kind of car to be used.' The evidence, we think fairly established plaintiff’s cause, of action.

The judgment appealed from should fie affirmed.

All concur..  