
    Lillian M. Thyll, Appellant, v. The New York and Long Branch Railroad Company and The Pennsylvania Railroad Company, Respondents.
    
      Carrier—when an exemption from liability does not apply where the carrier was negligent — the burden of showing negligence is on the shipper — evidence esiab- ■ lishing such negligence — liability for damages to goods occurring after possession thereof has been demanded — objection that evidence received generally is not admissible as to one of the defendants— it must be taken at the trial—failure to object to evidence not of the character required by law.
    
    A provision in a contract, under -which goods were shipped by rail, that no carrier or party in possession thereof should “ be liable for any loss thereof or damage thereto by * * *" changes in weather, heat, frost, wet or decay,” does not relieve the carrier or a party in possession of the goods from liability to the shipper if, through their negligence, the goods sustain damage from any of the causes mentioned in the contract, but imposes upon the shipper the burden of establishing that the damage was due to such negligence.
    Where it appears that the railroad company to whom the goods were first delivered, delivered them to another railroad company and that when the goods were finally delivered by the latter railroad company to the shipper they were found to be damaged by moisture, and on the trial of an action brought by the shipper against both the railroad companies to recover such damages, the shipper offers in evidence a letter written by a representative of the first-mentioned railroad company stating that the" goods were delivered by it to the other railroad company in good order and condition and such letter is received in evidence generally, without objection, the other railroad company cannot successfully contend, for the first time upon appeal, that the letter was not admissible as against it.
    Where it appears that the second railroad company received the goods on July 6, 1901, and did not deliver them to the shipper until July 25, 1901, although the shipper inquired for them several times during the interval and was informed that they had not arrived, such railroad company is liable for all damages sustained by the goods during this interval.
    What evidence is sufficient to justify a finding that during this interval the goods sustained damage from moisture in consequence of the negligence of the second railroad company, considered.
    Where proof which is not of the quality or character required by law is not objected to by the party affected thereby, such party is deemed to assent to this method of proof.
    Appeal by the plaintiff, Lillian JVI. Thyll, from an order of the x Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of July, 1903, reversing a judgment of the City Court of the city of New York in' favor of the plaintiff, entered in the office of the clerk of said court on the 7th day of January, 1903, and also reversing an order of said City Court, entered on the 14th day of January, 1903, denying. the defendants’ motion for a new trial made upon the minutes.
    . Theodore T. Saylor, for the appellant.
    
      Robert Thorne, for the respondent New York and Long Branch Railroad Company.
    
      A. Leo Everett, for the respondent Pennsylvania Railroad Company.
   McLaughlin, J.:

This action was brought to recover damages to personal property, alleged to have been caused by defendants’ negligence. The plaintiff had a verdict in the City Court and from the judgment entered thereon defendants appealed to the Appellate Term, where the judgment was reversed and a new trial ordered, and by permission the plaintiff appeals to this court.

At the trial it appeared that in May, 1901, the plaintiff shipped from Berlin, Germany, to the city of New York, a hamper of goods consisting mostly of linen articles. When the hamper arrived at New York it was sent to the public stores, and after an examination there it was, on the fifth of July, delivered by an express company acting for the plaintiff to the defendant the Pennsylvania Railroad Company for transportation to Elberon, N. J., a station on the line of the defendant the New York and Long Branch Railroad Company. The Pennsylvania Railroad Company transported the hamper to Elberon, N. J., and on the sixth of July delivered it to the defendant the New York and Long Branch Railroad Company, in whose possession it remained until the twenty-fifth of July, when it was delivered to the plaintiff, and then upon an examination the contents were found to be wet, mildewed and damaged to the extent for which a recovery was had.

The contract under which the hamper was transported by the Pennsylvania Railroad Company provided that no carrier or party in possession thereof should “ be liable for any loss thereof or damage thereto, by * * * changes in weather, heat, frost, wet or decay,” but this provision of course did not relieve the defendants from liability if the goods were damaged through their negligence. It did, however, impose upon the plaintiff, before she could recover, the burden of establishing that the injury to her property was the result of defendants’ negligence. (Draper v. Prest., etc., D. & H. C. Co., 118 N. Y. 118; Platt v. Richmond, Y. R. & C. R. R. Co., 108 id. 358.) There is nothing in the record which would justify a finding to the effect that the Pennsylvania Railroad Company was negligent in any respect as to the transmission of. the goods from New York to Elberon, N. J., or in the delivery of the same there to the New York and Long Branch Railroad Company. The proof is uncontradicted to the effect that the hamper was delivered to the Pennsylvania Railroad Company on the fifth of July, and by it transported and delivered to the New York and Long Branch Railroad Company at its station at Elberon, early in the morning of the sixth of July, and while in the possession of the Pennsylvania Railroad Company it was at all times under cover, protected from the weather, and properly cared for. Not only this, but the plaintiff offered in evidence a letter which was received without objection by either of the defendants, in which a representative of the Pennsylvania Railroad Company stated to the plaintiff, prior to the commencement of the action, that the hamper was delivered by the Pennsylvania Railroad Company at the Elberon station to the defendant the New York and Long Branch Railroad Company “in good order and condition.”

This, taken in connection with the allegation of the complaint to the effect that the station at Elberon was at the time in question under the control and management of the New York and -Long Branch Railroad Company, its agents and servants, would seem to •absolve the Pennsylvania Railroad Company from all responsibility as to damage to plaintiff’s property.

If I am right in this, then it necessarily follows that the Appellate Term was right in reversing the judgment and ordering a new trial so far as the Pennsylvania Railroad Company was concerned.

As to the New York and Long Branch. Railroad Company a different question is presented. The letter referred to, written by the Pennsylvania Railroad Company to the plaintiff, and which was received in evidence without objection, tended to establish that the goods were in good condition when delivered at Elberon. This. letter was admitted without qualification, and it does not now lie with-the New York and Long Branch Railroad Company to insist that the letter was not competent evidence against it. The letter was proof of a material fact. It was evidence in the case, and as such the jury were bound to give it consideration. A material fact may sometimes be proved by other than strictly legal evidence. As said in Crane v. Powell (139 N. Y. 384): “ When proof is offered to established that is not of the quality or character required by law, and it is not objected to, the other party is deemed to assent to another mode of proof of an inferior or secondary nature.” Here the plaintiff, by ,a declaration of a representative of the Pennsylvania Railroad Company, sought to establish the condition of the goods at the time they were delivered at Elberon. The New York and Long Branch Company did not then see fit to object to such mode of proof so far as it was concerned, and it cannot now be ¡heard to question the method adopted or the force of the evidence adduced for that purpose.

We have, therefore, evidence sufficient to sustain a finding to the effect that the goods were in good condition, when they were received by the 'New York and Long Branch Railroad Company, and the remaining inquiry is whether there is any evidence to the effect that they were thereafter injured through its negligence. Bearing upon this question the plaintiff proved that the hamper was at that station on the sixth of July; that thereafter she called several times and inquired for it — on each occasion being informed by the representative in charge that it was not there — and she was not, in fact, able to get it until the twenty-fifth of that month. In the meantime it appeared that the hamper was placed in a small freight house which stood “ in a hollow on stilts,” which, although it did not leak, had large sliding doors opening opposite each other to the weather; that during the time the hamper remained in the freight house it was rainy and the atmosphere was heavy with moisture, and it is at least inferable'from the evidence that the goods could have been injured by reason of such moisture,

I think these facts were sufficient to justify a finding of negligence. The proof showed that the goods were in good condition when delivered at Elberon, and they were thereafter damaged—■ the only reasonable explanation given as to the cause of such damage being the excessive moisture in the atmosphere. If it had delivered the goods to plaintiff when she first called for them — if this were the cause of the damage — it can fairly be assumed they would not have been injured. The plaintiff was entitled to her goods when she called for them, and the New York and Long Branch Railroad Company having i-efused to make such delivery became liable for any damage which the goods might thereafter sustain. (McKinney v. Jewett, 90 N. Y. 267; Faulkner v. Hart, 82 id. 413.)

It follows that the determination of the Appellate Term, in so far as it relates to the Pennsylvania Railroad Company, should be affirmed, with costs to it, and judgment absolute entered in its favor, in pursuance of stipulation; and in so far as it relates to the New York and Long Branch Railroad Company, the same should be reversed, with costs, and the judgment and order of the City Court affirmed, with costs.

Yan Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred. ■,

Determination of Appellate Term, so far as relates to the Pennsylvania Railroad Company, affirmed, with costs, and judgment absolute ordered in its favor in pursuance of stipulation ; and reversed, with- costs, so far as relates to the Yew York and Long Branch Railroad Company, and judgment of the City Court affirmed, with costs.  