
    David Berkowitz, Appellant, v. Chicago, Milwaukee and St. Paul Railway Company and The New York Central and Hudson River Railroad Company, Respondents.
    Second Department,
    December, 1905.
    Common carrier — presumption that goods were -injured in hands of last of connecting carriers — burden on last carrier to show facts constituting defense ~ when complaint should be dismissed as. to first connecting carrier. ’ •
    When goods transported and delivered by connecting carriers are shown to.have been delivered to the first carrier in good condition and delivered by the second carrier in damaged condition, the burden is upon the last Cartier to show that the goods were delivered by it in the same condition in which they were received'by it, the presumption being that the goods remained'in the same state * when delivered1 to it as when originally shipped.
    Hence, in an action against two connecting carriers jointly, when the only proof is that the goods were delivered to the first carrier in ' good condition and . . delivered by the second carrier in damaged condition, the complaint,, owing to' the presumption aforesaid, skould.be dismissed as to the first carrier and the recovery allo wed only against, the, second carrier.
    Under such proof, owing to the fact that carriers are liable as insurers, a prima, facie case is made ótit against the second carrier, which imposes ¡upon it the burden of showing facts constituting a defense.
    
      Appeal by the plaintiff, David Berkowitz, from a judgment of the Municipal Court of the city of Mew York, entered in the office of the clerk of said court, dismissing the plaintiff’s complaint.
    
      M. Hallheimer, for the appellant.
    
      Hoffman Miller, for the respondent the Chicago, Milwaukee and St. Paul Railway Company.
    
      Charles C. Paulding [Middleton A. Caldwell with him on the brief], for the respondent the New York Central and. Hudson River Railroad Company.
   Hooker, J. :

The plaintiff claims to have delivered freight in good condition to the defendant the Chicago, Milwaukee and St. Paul Bailway Company for carriage to Mew York city, and that when they reached Mew York they were badly damaged. They were brought into Mew York over the railroad of the Mew York Central and Hudson Biver Bailroad Company, and this action is against both defendants. The plaintiff was nonsuited in the court below and appeals.

The complaint alleges that the defendant The Chicago, Milwaukee and St, Paul Bail way Company carried the goods and delivered the same to the defendant the Mew York Central and Hudson Biver Bailroad Company some time in the month of March or early part of April in the year 1904 at one of its connecting points with the road of the defendant the Chicago, Milwaukee and St. Paul Bail-way Company.” The answer of the Central Company, after admitting that it is a domestic railroad corporation and a common carrier of goods, “denies, upon information and belief, each and every allegation of the complaint, charging fault, carelessness and negligence on the part of the defendant, its agents, servants and employees,” and closes with the usual prayer. The allegations that the two roads are connecting carriers and that the goods were delivered by the St. Paul road to the Central must, therefore, be deemed to be admitted, for it is apparent that only those allegations of the complaint are denied which charge fault, carelessness and negligence, and the allegation quoted charges neither.

The answer of the St. Paul road alleges affirmatively that “ this defendant delivered said goods and personal, property to the defendant the Hew'York Central and Hudson Biver Bailroad, Company, .and that when so delivered they, were in the same condition as they were when recéived by .this defendant, and that any loss -or damage t'o said goods was caused while in transit on the roads controlled by the Hew York Central and Hudson Biver Bailroad Company,, and not while in transit by any road controlled by this defendant.” It was established, therefore, by the pleadings themselves, that as far as the Taw of liability as between and against connecting common carriers is concerned, these two defendants were connecting carriers. The proof offered by the plaintiff tended clearly to establish -that' when the goods were delivered to the St. Paul road at Milwaukee-they were in good condition, and that when they were seen by the plaintiff' at the freight house of the defendant, the Central road, they were badly damaged. In this state' of the -proof the. presumption arose that they were delivered to the Central, road in good condition, and the damage, if any, occurred while they were in the- ■' possession of that defendant. The rulé has been correctly stated thus: “Where the last carrier delivers the shipment to the consignee in an injured condition, the presumption is; that the injury occurred on its line; a consignment in good order when delivered to the'initial line is- presumed to remain so.” ' (6 Am. & Eng. Ency. of Law [2d ed.], 625.) -

And, again, in different language: “In the case of a mere injury to the goods, no failure to deliver- being* shown, if the. last carrier Issued for the damage resulting from the injury, the burden of proof will be upon it. to show that the goods were delivered by it in the samé condition in which tlicy were received by it, the presumption ’being that the goods remained -in the same- state when delivered to it as when originally shipped.” (6 Am.. & Eng. Ency.. of Law [2d ed.], 651, 652.) Although the court of last resort in this jurisdiction seems never to -have' spoken in regard to this rule, It cannot be. doubted that such is the 1'aw in this State. The doctrine as stated was held in Smith v. New York Central R. R. Co. (43 Barb. 225), and that case was affirmed, but without opinion (41 'H. Y. 620). It was cited with approval in Canfield v. Baltimore & Ohio R. R. Co. (75 N. Y. 144,448). The -same rule was held to prevail in Springer v. Westcott (2 App. Div.295)., and the Smith and Ganfield cases were cited as authorities. (See, also, Fox v. Wabash Railway Co., 16 Misc. Rep. 310, and Myerson v. Woolverton, 9 id. 186.)

Applying this rule to the case at bar, it is clear that the nonsuit as to the defendant the St. Paul Company was properly granted, for in the absence of direct proof showing in whose possession the goods actually were injured^ the presumption arises that they were delivered to the last connecting carrier in good order. And this fact would, of. course, absolve the St. Paúl Company. Bearing in mind that common carriers are insurers, while acting as such, the presumption that these goods were delivered to the Central Company in good order, coupled with the proof that they were brought to its freight house at the end of the journey in damaged condition, establishes a prima faoie case against the Central Company, which imposed upon it the burden of showing some facts which might constitute a defense. The rule rests upon the recognized principle in the law of evidence by which the burden of proof of a negative averment is cast upon a party purely because of his better ability to adduce proof upon the subject. (Smith v. New York General R. R. Co., supra.)

The evidence of value was not as satisfactory as might be wished, but we are of the opinion that there was clearly some competent evidence upon this question which called for its consideration upon the merits of the controversy.

The judgment should be affirmed as to the respondent the Chicago; Milwaukee and St. Paul Eailway Company, with costs, and reversed as to the defendant the Hew York Central and Hudson. Biver Bailroad Company, and a new trial ordered, costs to abide the event.

Hirschberg, P. J., Bartlett, Woodward and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs, as to the defendant the Chicago, Milwaukee and St. Paul Bailway Company, and reversed as to the defendant the Hew York Central and Hudson Biver Bailroad Company, and a new trial ordered, costs to abide the event.  