
    Hannah Springier, Respondent, v. Robert E. Westcott, as President of the Westcott Express Company, Appellant.
    
      Negligence—presumption that baggage %dhen received by a baggage express company is in the same condition as when checked by the railroad company.
    
    In an- action brought against a baggage express company to recover foi' damages to" a trunk and the loss of- its contents, evidence that,, after receiving the check from the plaintiff, the express company obtained possession of the trunk from ■the railroad company throws upon the express company the burden of rebutting the presumption that the railroad company delivered the trunk to the express-company in the same condition in which it -was when it was checked.
    In. such a case, a request to -charge made by the defendant, that if, as between i.t and the railroad company, the jury 'were unable to determine in whose possession the trunk was when the theft took place, the defendant would be entitled to a verdict “irrespective of any other question,” is, properly refused, as it ignores the controlling fact that the defendant had by the evidence been placed iñ a position where it' was required' to rehut the presumption that it had received the trunk in the condition' in which it was when checked. '
    Appeal by the defendant, Robert E. Westcott, as President of the Westcott Express 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 17th day of February, 1897, upon the verdict of a jury.
    This action was brought to recover for damage done to a trunk for which the check was surrendered by the plaintiff to the defendant’s agent while upon the train, but which was delivered to her three days later broken and empty.
    
      Austen G. Fox, for the appellant.
    
      B. F. Einstein, for the respondent.
   Patterson, J.:

The appeal in this cause brings up now nothing of substance for review differing from what has already been settled by the decision of this court. It was held on the last preceding appeal (2 App. Div. 295) that while the plaintiff was undoubtedly bound to prove the delivery of the trank to the defendant in its original condition, she did so prima facie when she showed that after the defendant secured her check for the purpose of obtaining possession of the trunk from the railroad company, the defendant did obtain that possession; and it was then for the defendant to rebut the presumption that the railroad company delivered the trunk to it in the same condition as it was when it was checked. The evidence in the record now before us fails to show that the defendant has successfully rebutted the presumption referred to. There was no error committed in charging the jury on that subject, nor did the court err in refusing to charge that if, as between the defendant and the railroad company, the jury were unable to determine in whose possession the trunk was when the theft took place, the defendant would be entitled to a verdict “ irrespective of any other question.” That request simply asked the court to instruct the jury to ignore that which was the determinate consideration in the case, namely, that it had been sufficiently shown prima facie that the defendant did obtain possession of the trunk in the condition in which it was when checked, and that hence the necessity existed for the defendant to rebut the presumption that it received the trunk in that condition. No other exception in the case requires discussion.

The judgment should'be affirmed, with costs.

Van Brunt, B. J., O’Brien and Ingraham, JJ., concurred ; Williams, J., dissented.

Judgment affirmed, with costs.  