
    Francis A. Williamson, Resp’t, v. The New York, New Haven and Hartford Railroad Company, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed March 5, 1889).
    
    1. WABBH0"tJS]BMBN—Bailment—Failure to deliver goods upon de-
    mand—Right op recovery.
    Where, in an action to recover the value of goods held by the defendants as warehousemen, upon demand, it appeared that the goods had disappeared: Meld, that the failure of the defendant to deliver upon demand the goods deposited, put upon it the burden of accounting for them, or proving that they were lost without any neglect on their part; that on their failure to show this, every presumption is in favor of the plaintiff’s right of recovery.
    2. Same—Evidence—When competent to show belief.
    It was intimated that the goods had been stolen, and the station master, in whose charge they were, was asked, on cross-examination, whether the defendant had made any effort to trace out the burglary. Meld, that the question was proper, as it tended to show that he himself did not believe that the goods had been stolen, he having made no effort to find out who the stealer was.
    •3. Same—Charge to jury—Fact bearing upon question of negligence.
    Where the attention of the jury was called to a fact bearing upon the question of the defendants’ negligence: Meld, no error.
    
      4. Same—Wbat mat be considered bt jury.
    The attention of the jury was further called to the fact that the morning: of the day on which it was claimed the goods were lost, some hours-elapsed before the person acting as baggage master discovered that a door had been left open; not as being of itself evidence of want of care, but as-one of the surrounding facts which the jury might take into consideration: Held, no error.
    5. Same—Liability of warehouseman for stolen goods.
    A warehouseman is liable for his negligent omission to take reasonable.- and prudent precaution to guard goods in his custody from thieves.
    Appeal from a judgment entered on the verdict of a jury, and from ah order denying the defendant’s motion for a. new trial, etc.
    
      Ingraham & Allen, for resp’t; Page & Tafft, for app’lt.
   Truax, J.

—The action was brought by plaintiff to recover the value of certain goods that defendant, as warehouseman, held for him.

There are some exceptions to the admission of certain-questions that tended to show the value of such goods.

These exceptions were not well taken. The evidence was: not strong, but it was relevant to the question of value. Its weight was a question for the jury, and they were properly instructed by the court on that point.

The goods had been delivered to the defendant as a common carrier, but its obligation as a common carrier had ceased, and it was holding the goods simply as a warehouseman.

At the close of the plaintiff’s case, the defendant moved to dismiss the complaint on the ground that its liability, as a common carrier, had ceased, owing to the failure of the plaintiff to call for his goods, and that the plaintiff had failed to make out a case against it as a warehouseman. This motion was denied, and the defendant excepted.

We are of the opinion that this ruling was not erroneous. The plaintiff had, at this point, made out his case. The failure of the defendant to deliver, upon demand, goods deposited with it as a warehouseman put upon it the burden of accounting-for them. See Schwerin v. McKie, 5 Robts., 404; affirmed 51 N. Y,, 180, and cited with approval in the Bank of Oswego v. Doyle, 91 N. Y., 42.

The goods had disappeared, how and when was for the-defendant to show, and having failed to show this fact, every presumption is in favor of the plaintiff’s right to recover the value of the missing goods.

The defendant was liable as bailee or warehouseman, and as such was bound to deliver the goods on demand, or to prove that they were lost without any negligence on its part. See Bank of Oswego v. Doyle, 91 N. Y., 42.

It was intimated on the trial that the goods had been stolen. One of the witnesses for the defendant, the station master, in whose charge the goods were when last seen, was asked, on cross-examination, if the defendant had made-any effort to trace out the burglary? This was objected to as immaterial, irrelevant and incompetent. The objection was overruled, and the defendant excepted.

We think that this question was proper on cross-examination. It tended, though perhaps in a slight degree, to show that the witness himself did not believe that the goods had, in fact, been stolen, because he had made no effort to find out who the stealer was.

The court charged as follows: “You perceive that on© man,” in this case, was called upon to perform numerous-duties. You “will consider whether the duty of attending-to the giving of” tickets and the duty of looking after the baggage and “ other duties which, he says, he performed, was more than could ” be expected to be performed with reasonable accuracy, and with reasonable care, by one man.”

This portion of the charge was excepted to by the defendant.

We are of the opinion that this was not erroneous. The fact to which the attention of the jury was called, though not an important fact, was evidence of defendant’s negligence sufficient to authorize the court to submit the question to the jury.

A warehouseman is liable for his negligent omission to take reasonable and prudent precaution to guard goods in his custody from thieves. Faucett v. Nicholls, 64 N. Y., 377.

The coui’t also called the attention of the jury to the fact which was in evidence, that the morning of the day on which it was claimed the goods were lost, some hours elapsed before the person acting as baggageman discovered that a door had been open, and he left that to the jury as-some evidence on the question whether or not ordinary-care had been given to the custody of the goods.

Subsequently the court said that he did not call the attention of the jury to this fact as being of itself evidence of want of care, but simply as one of the surrounding facts connected with the case which might, or might not, affect, the jury, as they gave more or less weight to it.

We are of the opinion that there was no error in the charge as modified. But the fact remains undisputed that-the defendant was in possession of the plaintiff’s goods as; a bailee or warehouseman, and that it has not returned to the pláintiff those goods.

The burden is with the defendant to explain- why it did not deliver the goods to the plaintiff on demand.

This case is to be distinguished from Claflin v. Meyer (75 N. Y.. 260), in which case it conclusively appeared that the goods had been stolen, * * * and it was there held that the burden of proving that the stealing was occasioned, or was not prevented, by reason of some negligence or ■omission of due care on the part of the warehouseman, was upon the plaintiff, while in this case ifc does not conclusively appear that the goods had been stolen.

Judgment and order affirmed, with costs.

Sedgwick, Oh. J., and Dugro, J., concur.»  