
    Moritz Roth, App'lt, v. The Hamburgh American Packet Co., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed January 5, 1891.)
    
    1. Carriers—Negligence—Liability for breakage.
    In the absence of proof of the manner in which the casks in question were made or the strength of their material, there is no presumption from the mere fact of breakage that ordinary care was not used by the carrier.
    :2. Same.
    The casks when received by defendant were enveloped in linen covers, and the bill of lading stated they were received in “ apparent good order and condition.” Feld, that this referred only to the linen cover, and that there could be no presumption as to the strength of any particular cask.
    
      Appeal by plaintiff from judgment dismissing complaint entered upon an order made at trial term, and from order denying plaintiff’s motion for a new trial, made upon the judge’s minutes.
    
      John Fennel, for app’lt; James C. Colgate, for resp’t.
   Per Curiam.

The action was for the value of two casks of wine that had been shipped upon a steamer of the defendants to-be carried to this port. The plaintiff was owner and consignee. On the arrival of the steamer the plaintiff demanded the casks. They were then in a broken condition, some of the staves having been broken. The whole of the contents had leaked out.

The plaintiff had received a bill of lading, which provided that the defendants should not be liable for breakage or leakage, but on the trial it was claimed that the shipment had been made under a verbal contract which would make the defendants liable as common carriers at common law. The evidence, however, shows that the shipment was made subject to the terms of the printed bill of lading, afterwards delivered to the agent of plaintiff and sent by him to plaintiff.

The plaintiff claimed, under the bill of lading, that assuming the defendants were not liable for breakage and leakage, unless caused by their negligence, yet that the facts of the breakage and leakage created a- presumption of negligence in the treatment of the casks, or, at least, it was for the jury to say whether the condition of the casks did not show negligence.

_ Let it be assumed for the purpose of this decision that the law is that when casks or things of that nature are generally carried in ships without breakage if ordinary care is used, the fact of breakage will lead to a presumption that ordinary care was not used. Yet such a presumption can be made only of casks that are made of the material and in manner that suffice to give them strength to resist the ordinary operation upon the ship. If nothing be known or presumed as to the strength of the cask, no experience would exist upon which it might appear probable that it would bear ordinary usage.

In the present case, at the time of shipment the casks were en-' veloped in linen covers. The manner in which the casks were made or the strength' of material were not shown, although proof on the subject could have been had. The admission in the bill of lading referred only to the “ apparent good order and condition ” of the casks, and this referred in fact to the linen covers. There can- be no presumption as to the degree of strength of any particular cask.

If these views are right the plaintiff did not show facts which made á presumption of negligence on defendant’s part or any question for the jury on that point.

The rulings as to evidence were correct.

Judgment and order appealed from affirmed, with costs.

Sedgwick, Ch. J., Freedman and Ingraham, JJ., concur.  