
    ELISE MAGNIN, el al., Plaintiffs and Respondents, v. WILLIAM B. DINSMORE, Defendant and Appellant.
    An. express company cannot limit their liability for loss and damage, by its receipt or contract, when the loss or damage was caused by its, or its servants’, negligence, or want of due and proper care of the property entrusted .to its custody and transportation.
    The common law liability for negligence or want of ca/re attaches to ex-pressmen as common carriers, notwithstanding that the value of the property exceeded the value stipulated in the contract, or that the immediate cause of the loss may have been within any one or other of the exemptions named in their contract; and in every case where the carrier limits his liability, by special conditions in the contract, such limit and conditions are unavailable if the loss was caused by his negligence.
    But in all cases where the evidence shows that the loss or damage falls within the limits or conditions expressed in the contract, the onus proiandi rests upon the party damaged, to establish the negligence of the carrier, and in such cases, where the proof of negligence rests merely upon the fact of the failure of the carrier to deliver, the party damaged cannot recover from the carrier, for negligence will not be presumed from this fact alone. The negligence of the carrier must be shown, and will not be presumed from the loss alone.
    The case under consideration is analogous to that of Lamb v. The Camden and Amboy Transportation Co., 46 IV. Y. S. 271, where the loss happened
    , by fire, which was exempted by the conditions of the contract. In this case, the value of the property exceeded §50—the sum to which the liability was limited—and the negligence of the defendants was not shown.
    
      The cases of Bunnell v. The Mew York Central E. B. Co., 45 JJ. Y., and Belger u. Dinsmore, discussed and considered with the Lamb case, and the latter considered the controlling decision.
    Before Barbour, Ch. J., Monell and Freedman, JJ.
    
      Decided January 4, 1873.
    Appeal from a judgment and order.
    The action was to recover the value of a package of jewelry, delivered "by the plaintiffs to the Adams Express Company, to "be transported to Memphis, Tennessee, and consigned to Merriman & Co.
    The Express Company gave the following receipt:—
    “ Adams Express Company, Great Eastern, Western, and Southern Express forwarders.
    “ Mew Yobk, March, 23 d, 1863.
    “ Received of one package, marked J.
    E. Merriman & Co., Memphis, Tenn., which it is mutually agreed is to "be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation.
    “It is further agreed, and is part of the consideration of this contract, that the Adams Express Company are not to "be held liable or responsible for the property herein mentioned, for any loss or damage arising from the dangers of railroad, ocean, steam, or river navigation, leakage, fire, or from any cause whatever, unless specially insured by them, and so specified in this receipt; which insurance shall constitute the limit of the liability of the Adams Express Company in any event; amd, if the value of the property above described is not stated by the shipper, the holder hereof will not demand of the ■ Adams Express Company a sum exceeding fifty dollars for the loss or detention of \ or damage to, the property aforesaid. 1'Tor shall claim be made for damage to goods not properly packed and secured for transportation. All articles of glass will be taken at shipper’s risk only, and the shipper agrees that the Company shall not be held responsible for any injury by breakage or otherwise.
    “ For the Company,
    “Dinsmore, Jr.”
    Evidence was given, showing that the Company failed to deliver the package, and that it was lost to the plaintiff.
    The value of the package exceeded fourteen hundred dollars.
    The court charged the jury that “ For the purposes of this action, I will hold, that if you find that the Adams Express Company ham committed gross negligence in the discharge of their duty in forwarding this case of jewelry, that the clause in the express receipt which limits the liability in case of accident by rail, and also the $50 clause, do not exempt them from responsibility for the whole amount of the goods.” And further:
    “Upon the whole evidence, whether it was through the gross negligence of the Adams BJxpress Company that this case of jewelry was lost.’’’’
    
    The defendants excepted to so- much of the charge, as left it to the jury to determine whether the package had been lost through the gross negligence of the defendants, on the ground that the. plaintiffs had given no evidence to establish gross negligence, the only evidence being that the package had not been delivered.
    The plaintiffs had a verdict, and the defendant appealed.
    
      Mr. C. M. Da Costa, for appellant.
    
      Mr. C. B. Smith, for respondent.
   By the Court.—Monell, J.

I have no doubt that the charge of the learned judge was correct, if the evidence of negligence on the part of the carriers was sufficient to go to the jury; and the sufficiency of such evidence is to be ascertained by determining where the burthen of proof lies.

There is nothing in the defendants’ contract which relieves them from liability for loss caused by their, or their servants’, negligence. If one of the exemptions in their agreement, in terms, secured to the defendants exoneration for any neglect, or want of due and proper care ; and if there was neglect, or want of proper care on their part, then their common-law liability attached, notwithstanding the value of the property lost exceeded the stipulated amount, or that the immediate cause of the loss may have been within one or other of the exemptions named in their contract (Simmons v. Law, 3 Keyes, 217).

The only proof of negligence relied on by the plaintiffs, was the presumption arising from the failure to deliver, and if it can be said that such presumption does arise from such failure alone, then the burthen of proof rested upon the defendants ; or, in other words, was shifted to the defendants ; and it becomes incumbent on them to repel the presumption by establishing' that they had exercised due and proper care.

In the recent case of Lamb v. The Cam. & Amb. T. Co. (46 N. Y. R. 271), Mr. Justice Geoveb, in delivering the majority opinion of the court, held that there was no such presumption of negligence. In that case, the loss was by fire, and was, therefore, within one of the express exemptions from liability mentioned in the contract. Under such a state of facts, the court held that the carrier, being relieved from responsibility upon their cont/i'act, was to be regarded merely as a bailer for hire, and liable only for negligence, which negligence must be shown, and could not be presumed from the loss alone.

The case under consideration is, in respect to this question of negligence, entirely analogous to the case of Lamb. In that case, if the loss happened by fire, the carrier was not to be liable. In this case, if the value exceeded $50, the liability was to be limited to that amount.

But in each case, the limit to the liability was held to be unavailable, if the loss was caused by negligence.

I cannot, therefore, distinguish between the cases. If, in the one case, proof of the loss by fire was enough to cast on the plaintiff the burthen of proving negligence, then, in like manner, proof of value in excess of the limitation would shift the burthen from the defendant.

The little earlier case of Burnell v. The N. Y. Central R.R. Co. (45 N. Y. R. 184) which apparently conflicts with the Lamb case, is probably to be distinguished by the fact, that, in that case, there were no stipulated exemptions from liability, and, therefore, no further proof was required to charge the carrier, than the loss or failure to deliver the property to the owner.

If the carrier failed to deliver, it was to be presumed it was through his own fault. Whereas, in the Burnell case, mere proof that the loss was by fire, established a defence, unless it was shown, that the fire was caused by negligence.

But whether the two decisions are reconcilable or not, I think we should consider ourselves bound by the last, and as that very clearly places the onus on the plaintiff of proving negligence, we must hold the charge, in this case, to have been erroneous. There was no presumption of negligence arising from the mere fact of a failure to deliver; and there was no proof of negligence to charge the defendant.

I do not regard the more recent decision of the commissioners of appeals (Belger v. Dinsmore, not reported) as strengthening the Burnell case.

In the Belger case, the General Term, in reversing the judgment, put its decision on the ground, that the special provision in the carrier’s receipt, was a notice merely, and required proof of the assent of the other party. But the commissioners of appeals do not sanction that doctrine, and hold that prima facie, at least, such assent is to be inferred.

Although, therefore, on the trial, an offer by the plaintiffs to prove negligence was ruled out, the question does not seem to have been considered by the Appellate Court. The General Term did not have it before them, as the plaintiff did not appeal, and the commissioners of appeals found another ground for reversing the judgment.

The Lamb case must, therefore, be considered as the controlling decision, and, following it, the judgment before us must be reversed.

Judgment and order reversed, with costs to the appellant to abide the event.

Barbour, C. J. (concurring).

It is well established that a contract between a common carrier and a person who delivers goods to him to be carried in the line of his business, which provides that the former shall not be liable for the whole value of the goods injured or lost by his gross negligence or wrongful act, or that of his servants, is, pro tanto, void, not only as against] public policy, but because such exemption would, if valid, abrogate and destroy the obligation and contract to carry the goods and deliver them to the consignee, or to pay for them. It would simply be an undertaking on the part of the carrier to keep the goods safely, and transport and deliver them, unless he should see fit not to do so (1 Redfield on Carriers, § 138; Story on Bailm. § 571; 2 Greenl. Ev. § 218 ; Beck v. Evans, 3 Camp. 267; Smith v. Horn, 8 Taunt. 144; Sleat v. Flagg, 5 Barn. & Ald. 343; Wright v. Snell, Id. 350; Guillaume v. The Hamburg & Am. P. Co. 42 N. Y. 212; Cole v. Goodwin, 19 Wend. 251; Lamb v. The Camden & Amboy Tr. Co., 46 Id. 271). That portion of the charge which directed the jury, substantially, to render a verdict for the value of the goods in case they should find they were not delivered in Memphis because of the gross negligence of the defendants, was, therefore, correct and proper. The question remains as to whether the evidence was sufficient to justify the finding.

It is quite true that the burden of proving the carriers’ negligence rested upon the plaintiffs (2 Greenl. JBfo. § 218). But the negligence in this case consisted not in any act done by the defendants, but in their failure or omission to perform the duty with which they had charged themselves as common carriers, and by their contract or receipt. That duty or obligation was threefold : first, to keep the goods safely; secondly, to transport them to the place of destination, and, thirdly, to deliver them there to Merriman & Co.; and the proof given upon the trial, that the defendants had failed to perform those duties, "was primá-facie evidence of negligence (Burnell n. The N. Y. Cent. R. R., 45 N. Y. 184). If no other facts and circumstances favoring the defence had appeared in the case, therefore, the fact that the goods were not delivered would have established the negligence of the carriers conclusively; and, no excuse, or reason, being given by them for their failure to deliver the goods, the jury would probably have been justified .in finding such negligence to have be.en gross. But, of course, the legal presumption of negligence, arising from the mere proof of non-delivery, must be considered as destroyed, if there was sufficient evidence to show that delivery was impossible, because the goods had been lost by fire, or otherwise, as was the fact in Lamb The Cam. & Am. Tr. Co. (supra); and, in that case, the onus of proving that the loss was occasioned by reason of some neglect of the carriers was cast upon the pilaintiffs.

Upon the trial here, it was fully proven that the box, or package, in which the goods were inclosed when delivered to the defendants, with some smaller boxes, which were then in it, was found by the plaintiffs in the coroner’s office, in Brooklyn, several months after the goods were so delivered, the boxes having been opened, and the watches, and other articles originally packed therein, having been extracted and removed. This evidence of the loss of the goods was, doubtless, sufficient to remove the presumption of negligence arising from the proof of non-delivery by the carrier, and rendered it incumbent upon the plaintiffs' to show some negligent omission of duty on the part of the defendants, through or because of which the goods were thus lost. No attempt was made by them to do that, and there is, therefore, nothing in the case tending to show that the goods in question were not stolen from the defendants, notwithstanding all due and proper precautions were taken by them and their servants for the protection and safekeeping of the property. The evidence before the jury, therefore, was not sufficient to j ustify a finding by them, that the defendants were guilty of gross, or any, negligence in regard to the performance of their duties ; and, for that reason, the judgment should be reversed and a new trial directed, with costs to abide the event.  