
    FRANCIS A. WILLIAMSON, Respondent v. THE NEW YORK, NEW HAVEN and HARTFORD RAILROAD COMPANY, Appellant.
    
      Common carrier—Warehouseman—Duties and liabilities of.
    
    At the close of the plaintiff’s case on the trial, defendant moved to dismiss the complaint on the ground that its liability as a common carrier had ceased, owing to the failure of the defendant to call for his goods ; and that the plaintiff had failed to make out a case against it as a warehouseman. The motion was denied and the defendant excepted to the ruling.
    
      Held, that this ruling was not erroneous. The failure of defendant to deliver goods deposited with it as a warehouseman, placed upon it the burden of accounting for the goods. The goods had disappeared. The defendant failed to show how or when, or to prove that they were lost without any negligence on its part. It was bound to deliver the goods on demand, or to account for them under such facts and circurnstances as would relieve it from this liability. Failing in this, it must answer to the plaintiff for the value of the goods. The case of Claflin v. Meyer, 75 N. Y. 260, considered in its bearings upon this case.
    Before Sedgwick, Ch. J.,Truax and Dugro, JJ.
    
      Decided March 5, 1889.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial, etc. The facts in the case fully appear in the opinion of the court.
    
      Page & Taft, attorneys, and Henry W. Taft of counsel, for appellant.
    
      Ingraham & Allen, attorneys, and James 8. Allen of counsel, for respondent.
   By the Court.—Truax, J.

The action was brought by plaintiff- to recover the value of certain goods that defendant as warehouseman held for him.

There are some exceptions to the admission of certain questions that tended to show the value of such goods. These exceptions were not well taken. The evidence was not strong, but it was relevant to the question of . value. Its weight was a question for the jury, and they were properly instructed by the court on that point.

The goods had been delivered to the defendant as a common carrier, but its obligation as a common carrier had ceased, and it was holding the goods simply as a warehouseman.

At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that its liability as a common carrier had ceased owing to the failure of the plaintiff to call for his goods, and that the plaintiff had failed to make out a case against it as a warehouseman. This motion was denied and the defendant excepted.

We are of the opinion that this ruling was not erroneous. The plaintiff had at this point made out his case. The failure of the defendant to deliver upon demand goods deposited with it as a warehouseman, put upon it the burden of accounting for them. See Schwerin v. McKie, 5 Robts. 404; affirmed 51 N. Y. 180, and cited with approval in the Bank of Oswego v. Doyle, 91 N. Y 42.

. The goods had disappeared, how and when was for the defendant to show, and having failed to show this fact, every presumption is in favor of the plaintiff’s right to recover the value of the missing goods. The defendant was liable as bailee or warehouseman, and as such was bound to deliver the goods on demand, or to prove that they were lost without any negligence on its part. Bank of Oswego v. Doyle, 91 N. Y 42.

It was intimated on the trial that the goods had been stolen. One of the witnesses for the defendant, the station-master, in whose charge the goods were when last seen, was asked on cross-examination if the defendant had made any effort to trace out the burglary ? This was objected to as immaterial, irrelevant and incompetent. The objection was overruled and the defendant excepted.

We think that this question was proper on cross-examination. It tended, though perhaps in a slight degree, to show that the witness himself did not believe that the goods had in fact been stolen, because he had made no effort to find out who the stealer was.

The court charged as follows: You perceive that one man in this case was called upon to perform numerous duties. You will consider whether the duty of attending to the giving of tickets and the duty of looking after the baggage and any other duties which he says he performed, was more than could be expected to be performed with reasonable accuracy and with reasonable care by one man.” This portion of the charge was excepted to by the defendant.

We are of the opinion th&t this was not erroneous. The fact to which the attention of the jury was called, though not an important fact, was evidence of defendant’s negligence sufficient to authorize the court to submit the question to the jury. A warehouseman is liable for his negligent omission to take reasonable and prudent precaution to guard goods in his custody from thieves. Faucett v. Nichols, 64 N. Y. 377.

The court also called the attention of the jury to the fact which was in evidence, that the morning of the day on which it was claimed the goods were lost, some hours elapsed before the person acting as baggage-man discovered that a door had been open, and he left that to the jury as some evidence on the question whether or not ordinary care had been given to the custody of the goods. Subsequently the court said that he did not call the attention of the jury to this fact as being of itself evidence of want of care, but simply as one of the surrounding facts connected with the case which might or might not affect the jury as they gave more or less weight to it.

We are of the opinion that there was no error in the charge as modified. But the fact remains undisputed that the defendant was in possession of the plaintiff’s goods as a bailee or warehouseman, and that it has not returned to the plaintiff those goods. .The burden is with the defendant to explain why it did not deliver the goods to the plaintiff on demand.

This case is to be distinguished from Claflin v. Meyer, 75 N. Y 260, in which case it conclusively appeared that the goods had been stolen, and it was there held that the burden of proving that the stealing was occasioned or was not prevented by reason of some negligence or omission of due care on the part of the warehouseman, was upon the plaintiff, while in this case it does not conclusively appear that the goods had been stolen.

Judgment and order affirmed with costs.

Sedgwick, Ch. J., and Dugro, J., concurred.  