
    Julius Mautner et al., Respondents, v. The Terminal Warehouse Co., Appellant.
    (Supreme Court, Appellate Term,
    January, 1899.)
    Warehousemen — Negligence — When the bailor must make out more than a prima facie case of negligence.
    Proof of a contract of storage, of the receipt by a warehouseman of the goods and of injury to them by moisture, makes out a prima facie case of negligence; but where the warehouseman accounts upon the trial for the damage in a manner which permits an inference that he has not been negligent, the bailor must resume his proofs and re-assume the burden of establishing by affirmative evidence that, the warehouseman has been negligent.
    
      Appeal from a judgment rendered in favor of the plaintiffs in the Municipal Cburt of the city of New York, borough of Manhattan, seventh district.
    Ralph G. Miller, for appellant.
    Louis J. Vorhaus, for respondents.
   Beekman, P. J.

The plaintiffs stored certain hatters’ furs with the defendant. The goods remained on storage for a period of three years, at the end of which time it was discovered on examination that a portion of them had been injured by wet, and whether this was caused by the moisture in the air of the cellar- in which they were placed, or by water which had accumulated on the floor and soaked into the cases in which the goods were boxed, was the chief subject of inquiry in this action, which is brought to recover the damage which the goods had suffered on the theory that the defendant had been guilty of negligence in the matter. The trial justice has rendered judgment in favor of the plaintiffs, and an appeal having been taken to this court, the only question which the record presents for our consideration is, whether there was sufficient evidence in the case to support the finding which the judgment as rendered necessarily implies, that the defendant was guilty of any negligent act which was the proximate cause of the injury complained of.

In such an action it is well settled that the burden of proof rests upon the plaintiff throughout the entire case. It is true that when he has proved the contract of storage, the receipt of the goods by the warehouseman and the injury upon which his cause of action is predicated, a prima facie case of negligence has-been made out, and he would be entitled to judgment if no further proof should be made. But where the defendant has offered evidence accounting for the damage which is susceptible of the inference that there was no lack of care on his part, the plaintiff must resume his proofs and reassume the burden of establishing by affirmative evidence that the defendant had been negligent. Claflin v. Meyer, 75 N. Y. 260. In the case at bar it was conceded by the plaintiffs that they requested the defendant to store the goods in question in “ a cool, damp place, such as a cellar or basement.” This request was complied with, so that if the injury complained of was caused by such dampness, it is obvious that the plaintiffs could not recover. The pleadings were oral, bnt in compliance with a demand that was made by the defendant for a bill of particulars, the plaintiffs’ attorneys furnished one in writing, which contained, among other things, the following statement: These packages were damaged through the negligence and carelessness of the defendant in not taking proper means and precautions to prevent water from running in or falling on said cases and damaging the contents.” The issue, then, which the defendant was called upon to meet was thus tendered upon this allegation or specification of plaintiffs’ claim, and it was this which the plaintiffs were bound to establish by a preponderance of proof.

On the trial the plaintiffs made an effort to show that rain came into the cellar, causing the injury, in which attempt, however, they utterly failed. Evidence was given, however, tending to show that the concrete floor of the cellar was irregular, and that at times water would accumulate upon the floor wherever there was any depression to retain it; and from this it was argued that in some way this water reached the cases in question and wet their-contents. It satisfactorily appeared upon the proofs that this water was the result of a condensation of the moisture in the air. But whatever may have been the case, it is plain that the defendant was bound to exercise some precaution which would prevent any such accumulation of water from reaching the plaintiffs’ goods. In recognition of this obligation, evidence was given tending to-show that the cases in question were placed upon skids, which raised them at least six inches above the level of the floor, and, therefore, beyond the reach of any water which might have been thereon. Testimony to that effect was given by all of the defendant’s witnesses in the most positive manner. The only witness who gave any evidence tending to show the contrary was a clerk of the plaintiffs, who testified that he had examined the cases-in the cellar in question in 1896 and again in 1897, and found them free from damage at that time, and that the cases were flat on the ground.” But his attention was not specifically called to the question as to whether or no there were any skids under them, scthat his evidence upon that point is not so clear and unequivocal as possibly it might have been.

Without indulging in any further criticism upon the testimony of this witness, we think that it was at least met by the defendant’s evidence on this point, and that at the close of the entire case the most that could be claimed was that the proofs were evenly balanced, and that it was as likely that the injury complained of was due to the dampness of the atmosphere as that it had resulted from water flowing into the cases. The testimony of the only expert who was examined in the case tended to show that the stains upon the goods and upon the cases might have been caused either by water or by moisture in the air.

We are of the opinion that the plaintiffs failed to make out their case by a preponderance of proof, and that the trial justice, therefore, erred in awarding judgment in their favor. It results that the judgment must be reversed.

Gildersleeve and Giegerioh, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  