
    SAMUEL A. LAMBERT and Another, Plaintiffs and Respondents, v. HIRAM BENNER and Others, Defendants and Appellants.
    Shippers of goods having made a prima facie case by showing the shipment of butter in good order, it became necessary for the carriers to show that the butter had been stowed on board the vessel in a proper and suitable place. Having shown that, the burden of proof was changed, and the shippers were required to show either that the place of stowage was not a suitable, or not the most suitable place in the ship.
    Where, upon a shipment of butter in the month of August to a Southern port, the carriers had shown stowage in the coolest and best part of the ship, they had laid the foundation for the inference that any damage to the butter was caused by its quality, or from imperfect packing, or from perils of the sea, of which the shippers took the risk.
    Where the evidence of proper stowage was uncontradicted, and there were other causes which might have caused the injury, the jury have no right to totally disregard such evidence. Per Monell, J.
    Under such proof, it was the duty of the judge to have directed a verdict. To hold that, as the jury are to judge of the credit to be given to witnesses, their verdict can never be disturbed, would prevent the court from ever setting aside a verdict as being against the weight of evidence.
    Before Monell, McCunn, and Fithian, JJ.
    
      [Decided December 4, 1869.]
    The action was to recover against the defendants, as common carriers, the loss, by melting and leaking, from seventeen firkins of butter, shipped by the plaintiffs, at the port of New York, on board of the steamer “ Western Metropolis,” owned by the defendants, to be conveyed to the city of New Orleans.
    The complaint alleged that the butter was so negligently and carelessly stowed and carried by the defendants, that it leaked from the firkins or was otherwise damaged.
    The action was tried before Mr. Justice Barbour and a jury.
    At the close of the evidence, the defendants moved the court to dismiss the complaint, on the ground that the evidence failed to establish the liability of the defendants Lor the alleged injury. Also, upon the ground that the evidence in the case proved that the injury was not caused by any negligence, default, or improper conduct of the defendants, but was occasioned by the natural heat of the weather, and the inherent qualities of the article conveyed.
    The court denied the motion, to which decision the counsel for the defendants excepted.
    The defendants’ counsel then requested the court to charge the jury that, upon the evidence in the case, the plaintiffs were not entitled to recover. The court refused so to charge, to which refusal the counsel for the defendants excepted.
    The jury rendered a verdict for the plaintiffs.
    A motion made at Special Term for a new trial was denied.
    Judgment was thereupon entered upon the verdict, and the defendants appealed from the judgment and order.
    
      Mr. Erastus Cooke for appellants.
    Common carriers are not insurers against injury growing out of the intrinsic qualities of the goods carried (Nelson v. Woodruff, 1 Black, 156).
    
    The facts are undisputed, and the evidence uncontradictory.
    The defendants proved affirmatively that the goods were properly stowed, safely carried, and not injured through any fault of theirs. The only pretext afforded in the case for the verdict was the conjecture of some of the New Orleans witnesses, not amounting to evidence, that the butter must have been badly stowed. , - '
    The verdict is palpably against evidence, and should be set aside.
    Captain Hilton had testified that, on arriving at New Orleans, the packages were in good order, that is, externally they presented a good appearance.
    He noticed more or less grease from the contents having oozed out.
    He was then asked: “ Gan you state whether that was from 
      
      the liquefaction of the butter f” The plaintiffs’ counsel objected to the evidence as irrelevant, and the Court ruled it out; to which ruling defendants’ counsel excepted.
    This decision was clearly erroneous.
    It was a vital question to be determined, whether the packages, which were received in good order in New York, were broken by bad handling on the voyage, and thus made to leak; or, whether the oozing out of the contents was the result of their liquefaction and consequent expansion (1 Black’s Rep., U. S., 166).
    
      Mr. W. W. Goodrich for respondents.
    Where merchandise is delivered in good order to a vessel and comes out at the port of delivery in a damaged condition, the burden of' proof is upon the shipowners to excuse themselves, and to show that the damage was occasioned by one of the exceptions in the bill of lading (Rich v. Lambert, 12 How., U. S., 357; Clark v. Barnwell, 12 How., U. S., 280; Nelson v. Woodruff, 1 Black, 160; Ellis v. Willard, 5 Seld., 529; Hastings v. Pepper, 11 Peck, 43).
    This testimony proves that the damage to the butter, the cooked state of the butter, could not have been occasioned by the weather. The jury was justified, therefore, in believing that the damage was occasioned by the heat of the fires in boilers, or by bad stowage in some improper place. The burden of proof was upon the defendants. They had all the means of knowledge in their power, and were bound to prove to the satisfaction of the jury what was the real cause.
    The jury had the right from the testimony to infer bad stowage, either exposure on deck or to the heat of the boilers or fires, and the evidence clearly shows that the injury must have been occasioned by one or both of these causes.
    If the butter was injured on the wharf at New Orleans before delivery, the ship is responsible.
    The motion to direct a verdict for defendants was properly denied, there being evidence to submit to the jury.
    
      A verdict can only be directed where there is no conflict of evidence, where the party asking such direction “ has established, by evidence uncontroverted and admitting of no 'reasonable' doubt, every fact essential to his right to recover ” (St. John v. Mayor of New York, 6 Duer, 317).
    The defendants’ request to charge that, upon the evidence in the case, the plaintiffs were not entitled to recover, was properly refused.
   Monell, J.

The plaintiffs having made a prima facie ease, by showing the shipment of the butter in good order, it became necessary for the defendants to show that the butter had been stowed on board the vessel in a proper and suitable place, and in a proper and suitable manner. Having shown that, if they, did show it, the burden of proof was shifted, and the plaintiff was required to show, either that the place of stowage was not a proper or suitable place, or not the most proper and suitable place in the vessel, or was not stowed in a proper or suitable manner; or that, otherwise, the injury the butter sustained was through some other fault or neglect of-' the carriers.

The rule is, as stated in Clark v. Barnwell (12 How., U. S., 272, 283), that if the evidence on the part of the defence lay a foundation for a reasonable inference that the damage resulted from an imperfection in the goods when packed, or had occurred previously to their being shipped on hoard, the burden is thrown upon the shippers to rebut the inference; and when the commodity shipped is of a kind affected by heat, the shipper takes upon himself the risk of all loss proceeding from that cause (Nelson v. Woodruff, 1 Black, 156); and upon proof of proper stowage, the presumption will be that 'the injury occurred from improper packing, or from the quality of the commodity, or from damages of the seas.

The evidence in this case abundantly established that the butter was well stowed, and in the best and coolest part of the ship. One of the defendants’ witnesses described with much exactness the place where the butter was put, about forty feet forward of the boiler, and was separated from the boiler by a bulkhead and a space of nine or ten feet for the coal bunk, and then another bulkhead some inches thick. He said it was stowed where the heat of the boiler could not affect it, and m the coolest part of the vessel. Another witness testified that there was no other place on board the ship as cool as where the butter was stowed, and that it Avas well stowed.

Upon this evidence, it seems to me, the burden of proof was changed. The defendants had shown that they' had done all that they, as carriers, were required to do, and had laid the foundation for the reasonable inference that the damage resulted from the quality of the commodity (a risk which the shippers took), or from imperfect packing, or from perils of the sea.

-Was such reasonable inference rebutted by the plaintiffs? I think not. The evidence in rebuttal was mostly of a negative character. Excepting the proof of the sound condition of the butter at the time- of-shipment, there was nothing of a positive character to show that it was damaged by reason of any fault or neglect of the defendants. It was not shoAvn, nor attempted to be shown, that the butter was placed in an improper or unsuitable part of the vessel, of that it was not properly stoAved. The eA'idence, which the defendants had given on these subjects, was left wholly uncontradicted and unimpaired by any direct or positive proof.

But it is claimed that there was enough evidence of another kind to justify a jury in finding that the injury occurred through the defendants’ fault.

It was shown that the butter Avas received by the consignees on the day of its discharge from the vessel, and, upon examination on the same or a subsequent day, was found to be in a seriously damaged condition; some of the packages nearly one third, some nearly one half, and some even more empty, and was oily, and what the witnesses termed “cooked.” It was also proved by several shippers, accustomed to forwarding butter to Hew Orleans in the month of August, that it would arrive in good order, and was not liable to leak or drip, if it was well “stowed,” and, as some of the witnesses said, “well packed.” This -was the substance of all the evidence, and, from it, the jury were to find that the damage to the butter resulted from improper stowage or other misconduct of the defendants. They could not find that it arose from improper stowage against the' positive, uncontradicted evidence of the defendants’ witnesses, and there was no proof whatever of any other supposable misconduct on their part.

It was further shown, in order to furnish a reason for the damage, that on the day the 'butter was taken on board the weather was very hot, between eighty and ninety degrees— eighty-four on the 9th August, and eighty-seven on the 10th— and when it was discharged at New Orleans, one hundred and one degrees at noon, in the pilot-house of the vessel. The temperature of the water was from eighty-five to eighty-six degrees. There was also some evidence that butter exposed at a tempera-' ture of eighty or ninety degrees would melt and be injured. Several witnesses, residing in New Orleans, stated it as their im-. pression that the weather, at that place, in August, 1865, was about the same as usual, “about eighty degreesbut the defendants’ positive evidence of the precise state of the weather was left wholly otherwise uncontradicted.

1 do not look upon this as a case of conflicting evidence, but as one lacking any proof whatever to charge the defendants, after they had shown that the butter was stowed in the coolest, best, and most suitable part of the vessel; and I cannot agree that the mere proof of the good condition of the article on shipping, and its damaged condition on arriving, could justify the jury in wholly discrediting the defendants’ evidence, which otherwise was entirely unimpeaclied.

If there had been no other possible cause for the damage than a supposed improper stowage of the cargo, then a jury might' perhaps be authorized in finding, upon such evidence as was given in this case, that there must have been improper stowage. But such is not the case. On the contrary, the jury might have found that the butter melted from the heat of the weather, either while loading, or during the voyage, or when lying upon the wharf at Hew Orleans—of which melting the plaintiffs took upon themselves the risk. Much of the evidence strongly tended to establish the belief that it was injured from its inherently defective quality, which was developed by the heat of the weather; especially as it was also shown that a very large quantity of other butter was taken upon the same voyage, and delivered in good condition.

Where the testimony of a witness is fairly open to suspicion, and there are facts and circumstances strongly tending to discredit him, it is the right of a jury to pass upon his credibility. But where the circumstances do not necessarily contradict the witness, inasmuch, as the damage might be attributable to different causes, and are thereby entirely consistent with and do not oppose the truth of the witness’s evidence, it would be wrong to allow a total disregard of such evidence.

It is only, in this case, by wholly discrediting the testimony of the defendants’ witnesses, and attributing the damage solely to improper stowage, that the defence can be overruled, for, if such testimony is to be believed. the verdict was not supported by the evidence. I cannot go to the length that, as the jury are the judges of the credit to be given to witnesses, their verdict must never be disturbed. To hold to such a doctrine would prevent the court from ever setting a verdict aside, as being against the weight of evidence.

On the ground, therefore, that there was no sufficient reason for discrediting the testimony of the defendants’ witnesses in regard to the stowage of the butter, inasmuch as the jury could have found other causes producing the damages, I am of the opinion that, taking the whole of the evidence, the defendants had established a defence, and the jury ought to have been instructed, as requested by the defendants, to give them a verdict.

There was enough in the evidence to authorize the jury to say that some one of the other causes had produced the damage; and they had no right, by arbitrarily discrediting rinimpeached witnesses, to find that there was not and could not be any other cause than improper stowage.

The judgment and order should be reversed, and a new trial granted, with costs to abide the event.

McCunn, J.

(concurring). There is not a particle of evidence showing the cause of the damage to the butter; and the rule is that where the carrier has shown to the court that he has exercised all pi’oper care and diligence in stowing and taking care of his freight during its transit, the onus is thereby thrown upon the shipper; and before he can recover for negligence toward the property shipped, he must establish the fact that the injury resulted from the want of proper care on the part of the carrier whilst the goods were under his care.

Now, the proof here shows that the butter was well and carefully stowed in the forward hold, near the foremast, and in the coolest part of the vessel and the best place for stowing butter, and where the heat of the boiler could not reach or affect it. And, as I have said, there is not a lisp of evidence to the contrary of this ; it must follow, therefore, as a matter of course, that the learned Chief-Justice would have been warranted in taking the case from the jury and directing a verdict for the defendants.

Fithian, J.

(dissenting). There is but one exception to the rulings of the court on the trial. Evidence was given on the part of plaintiffs showing the condition and appearance of the packages of butter when shipped on board defendants’ steamer; also their appearance and condition when delivered at the port of destination. The master of the vessel was called for the defendants, and testified, among other things, thus : “ When we arrived, the packages (firkins) were in good order; that is, externally, they presented a good appearance; there was no leakage ; I noticed more or less grease from the contents havi/ng oozed out.” He was then asked to state whether that was from the liquefacth of the butter?” This question was objected to, and the answer excluded by the court. The question was objectionable. It called for an opinion of the witness as to whether the greasy appearance' on the outside of the casks or package indicated a liquefied condition of the contents. From aught that appears in the case, the jury were quite as competent to form an opinion on that subject as the witness. The latter was not shown 'to possess any peculiar or exclusive knowledge on the subject which would make his opinion competent as evidence. Beside, this was one of the questions to be passed upon by the jury, the defendants claiming that the liquefaction, if at all, occurred after the butter was delivered. I think the evidence was properly excluded. The only remaining question is, whether the verdict of the jury is so decidedly against and unsustained by evidence as that it ought to be set aside for that reason.

The plaintiffs gave evidence, which was not materially contradicted, tending to show that the butter, when shipped, was in prime order and condition, well and properly packed in proper and sufficient packages or firkins; that, on delivery to the consignee at the port of destination, the packages were found to be externally soiled and greasy, and, on being opened, it was found that from one third to one half the contents of each package was lost or missing, and the remaining butter was in an “ oily or cooked” condition. Other witnesses testified that the butter was “ melted,” liquefied,” and had run out of the casks in consequence. After considerable evidence of this character, and other evidence on the' question of damages, plaintiffs rested. Defendants then called the .master of the vessel and the steve-, dore who superintended the stowing of the cargo, both of whom testified positively in substance that the packages of butter in question were carefully and properly stowed near the foremast of the ship, somq eighty feet distant from the boilers, and eighteen feet below the water-line, which was the coolest and safest place possible on board the ship for the stowage of such freight. Evidence was also given to show that at the time of tins voyage the weather was very hot, the thermometer ranging from eighty to eighty-five degrees in the shade in New York, and from ninety-two to ninety-three degrees in New Orleans ; that the temperature of the water was . about eighty-five degrees, and that he supposed the temperature in the hold of the ship was about the same ; and that he had ten thousand dollars' worth of butter in that cargo, none of which was injured but this particular lot. Upon this evidence counsel for defendants claims that he has, by positive and uncontfadicted evidence, so conclusively rebutted the presumption of negligence arising from the lost and damaged condition of the butter when delivered, as to demonstrate that, if the liquefaction and loss of the butter occurred on board ship, it must have arisen from the heat of the weather acting upon the inherent qualities of the article. And for such damage, it is conceded, the defendants are not liable. The plaintiffs, in reply, however, gave evidence tending to show, and which, if credited by the jury, did show, that butter, well and properly packed and stowed, could and constantly did make the voyage from New York to New Orleans without loss or damage, in a temperature of eighty-five degrees and upward. And from this evidence, and the fact that other butter was carried safely on this ship and voyage, and other circumstances, the plaintiffs’ counsel insists that the jury were justified in discrediting the testimony of the master and stevedore ' as to the place and manner of stowage of these seventeen firkins, and that they must have so decided. A jury is not bound to accept as true every statement made by a witness, although sworn to positively, and within the witness’s knowledge, and not directly contradicted. If the witness be in any respect impeached in his credibility, or if there be other facts sworn to in the case which are inconsistent with such statements, they may be disregarded by the jury. In such case there is a conflict of evidence authorizing the jury to determine. And unless the verdict be so clearly against the weight of evidence as to indicate passion, prejudice, or inattention to duty on the part of the jury, it will not be disturbed. Such I understand to be the settled rale in applications to set aside verdicts as against the weight of evidence. In Lewis v. Blake (10 Bosworth, 198), Monell, J., states the rule to have been uniform for many years that the court will not interfere with the verdict of the jury unless it is dearly against the weight of evidence. In that case there was positive testimony on one side and indirect and inferential on the other. So in Cathron v. Collins (29 How. P. R., 155), the General Term of the Supreme Court, per Grover, J., held, that although in that case his impression was strong that the verdict was not in accordance with the truth, still, as it was not so flagrant as to show passion, prejudice, or inattention to duty, it should be sustained.

In the case at bar the condition and quality of the butter when shipped, its wasted and damaged Condition when delivered and examined at the port of destination, and whether that damage occurred from want of care and attention on the part of defendants’ servants, or from some other cause for which they were not responsible, were all questions of fact, in respect to which the evidence was conflicting, and the verdict of the jury should cond/ude the parties.

Judgment should be affirmed, with costs.  