
    M. Gustine Rieser, Appellant, v. The Metropolitan Express Company, Respondent.
    (Supreme Court, Appellate Term,
    December, 1904.)
    When proof of negligence of carrier of goods sufficient — Meaning of “ gross negligence ”.
    Proof, that goods delivered to a carrier were properly packed and were subsequently received in an injured condition, is evidence of the negligence of the carrier, in the absence of proof of due care on its part. This is so, even though the contract provides that the carrier is only to be liable for “gross negligence”. Such term; is relative and means the absence of care necessary under the circumstances.
    The words on a carrier’s receipt “ owner’s risk ” do not relieve it from the consequences of negligence.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, in favor of the defendant for the dismissal of the complaint.
    Frederick W. Sperling, for appellant.
    Ralph G. Miller, for respondent.
   Bischoff, J.

Goods, in all respects properly packed, were delivered to .the defendant by the plaintiff, with notice that the shipment included glass, under a contract whereby the defendant was to be held liable only for damage caused by fraud or “ gross negligence,” and not “ upon' any fragile •fabrics or any fabrics consisting of or contained in glass.” This contract was expressed in the receipt delivered to the plaintiff, and the words “glass” and “owner’s risk'” were stamped upon ‘the receipt. When the goods arrived at their destination the glass was broken, the damage thus represented being fifty dollars, for which amount —^ the sum limited by the receipt — the plaintiff, sued. Upon an agreed statement of facts, the justice dismissed the complaint for failure of affirmative proof of negligence.

The general words of exemption from liability for damage in the case of shipments of glass, and the words “ owner’s risk,” did not operate to relieve the defendant from the consequences of its negligence (Rathbone v. N. Y. C. & H. R. R. R. Co., 140 N. Y. 48), but still the shipment was subject to the limitation of liability to cases of “ gross negligence,” and the actual question is whether the plaintiff, upon the agreed state of facts, sustained the burden of proving “ gross negligence.” We think he did.

The general rule is that where goods, properly packed, are delivered to a carrier, their arrival in a damaged condition-calls upon the carrier to explain the cause of the .injury, if it is to escape liability for negligence. Campe v. Weir, 28 Misc. Rep. 243. The injury is prima facie proof of the absence of care called for by the circumstances, and the party having the exclusive means of knowledge of the facts is thus called upon to disclose them. “ ‘ Gross negligence ’ is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term ordinary negligence,’ but, after all, it means the absence of care that was necessary under the circumstances.” Milwaukee & St. Paul R. R. Co. v. Arms, 91 U. S. 489. In the case at bar the injury to the goods suggests the absence of care, and while the defendant might escape liability for gross negligence upon an explanation slighter than would be required if negligence simply were the test, still the explanation was called for by the facts which imported an omission of such prudence as the circumstances required, in view of the proper packing and labeling of the goods, with an extensive injury notwithstanding. The defendant having given no explanation, the plaintiff’s case, founded upon “ gross negligence,” was established. Campe v. Weir, supra.

- The judgment must, therefore,- be reversed and judgment' directed for the plaintiff, upon the agreed statement of facts, for fifty dollars, with costs in this court and in the court below.

Gildersleeve, J., concurs.

Freedman, P. J. (concurring).

Plaintiff’s proof which established that the goods in question had been in all respects properly packed and that- at the time of their delivery in such proper condition to the carrier the latter was expressly notified of their fragile character, but that they arrived at their destination in a broken condition, sufficiently established the carrier’s liability for gross negligence in the absence of proof of due care and vigilance on the part of the carrier.

In, a case of this kind where a carrier seeks to escape lia.bility by reason of an exception embodied in his contract and an issue arises as to negligence which, if established, renders the exception unavailable, evidence of a loss or injury which would not have resulted in the ordinary course of events with proper care on the carrier’s part is sufficient to make out a prima facie case of negligence and to throw on the carrier the burden of proving due care and vigilance. 6 Cyc. 523, and eases there cited. The defendant in the present case gave no proof whatever of such care and vigilance, and even offered no explanation. The case is, therefore, completely covered by the decision of this court in Campe v. Weir, 28 Misc. Rep. 243.

I concur in the views expressed by Mr. Justice Bischoff, which fully cover all the points involved in the appeal and in the final conclusion reached by him.

Judgment reversed and judgment directed for plaintiff upon an agreed statement of facts for fifty dollars, with costs in this court and the court below.  