
    Daniel Greenwald, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Carriers — of goods — action for damages — trial — interstate commerce commission — verdict.
    Certain goods were packed by plaintiff in a car upon the tracks of, and delivered at Detroit for shipment to, a connecting carrier of defendant. The car upon its arrival in New York city, the place of delivery specified in. the bill of lading upon which there was a notation “ Car to be opened by consignee,” was opened by defendant’s employees, who, according to custom, proceeded to store the goods or otherwise handle them for delivery to the representatives of plaintiff. In an action for damage to the goods witnesses for plaintiff testified that in unloading the car some of the goods were thrown about and trampled on and the evidence on behalf of defendant was to the effect that the ear had been improperly and carelessly loaded. Upon reversing a judgment entered upon a verdict in favor of plaintiff, held:
    That a request to charge that defendant having filed with the interstate commerce commission rules and regulations which provided that defendant should unload all cars consigned to the place mentioned in the bill of lading its connecting carrier had no authority to vary such regulation, correctly stated the rule as to the binding character of the tariffs and regulations filed with the interstate commerce commission and that the refusal to so charge was error.
    That as it appeared that the damage to the goods, if any, resulted not from the opening of the ear but from the subsequent handling of the goods, it was also error to refuse to charge that “ if the jury find that the damage was due to the improper packing by the shipper, the defendant is not liable,” and “ that unless the jury find that the damage occurred while the property was being unloaded by the defendant, the verdict should be for defendant,” particularly as the only issues to be submitted to the jury had not been clearly laid down in the main charge.
    Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiff, entered upon the verdict of a jury.
    Ales. S. Lyman (William Mann, and Jacob Aronson, of counsel), for appellant.
    Franklin Bien, for respondent.
   Bijur, J.

This action was brought by plaintiff for damages to a shipment of goods from Detroit to New York. The goods were packed by plaintiff in a ear at Detroit upon the tracks of and delivered for shipment to a connecting carrier of the defendant, the Michigan Central Railroad Company. The bill of lading, which is otherwise in the ordinary form, has a notation “ Car to be opened by consignee.” When the car reached the place of delivery specified, namely, the Franklin Street pier of the defendant, in this city, it was opened by defendant’s employees, who, in accordance with their usual custom, proceeded to store the goods or otherwise handle them for delivery to the plaintiff’s representatives.

Plaintiff’s witnesses testified that in the course of this unloading of the car some of the goods were thrown about, trampled on and presumably damaged. Defendant gave evidence to the effect that the car was improperly and carelessly loaded by plaintiff’s representatives at Detroit.

In order to make clear the issue to be determined by the jury, defendant presented three requests to charge, each one of which was correct, but all of which were declined by the learned trial court. The third request was that because defendant had filed with the interstate commerce commission rules and regulations which provided that defendant should unload all cars consigned to the Franklin Street station, the Michigan Central Bailroad Company had no authority to vary such regulation. This request stated the correct rule as to the binding character of the tariffs and regulations filed with the interstate commerce commission. See Pennsylvania Railroad Company v. Puritan Coal Co., 237 U. S. 121; Boston & Maine R. R. Co. v. Hooker, 233 id. 97.

However, the entire subject of the opening of the car by thó plaintiff is entirely immaterial because the damage, if any, caused by the defendant resulted not from opening the car, but from the subsequent handling of' the goods. As to this defendant’s first request was that ‘ if the jury find that the damage was due to the improper packing by the shipper., the defendant is not liable,” and the second request (being the corollary of the first) “ that unless the jury find that the damage occurred while the property was being unloaded by the defendant, the verdict should be for defendant.” These requests stated correctly the only issues to be submitted to the jury, and particularly as they had not been clearly laid down in the main charge they should have been charged as requested.

As there must be a new trial, it may not be inept to call attention to the fact that a totally incorrect rule of damages was apparently permitted to be allowed in the proof. If plaintiff has been damaged by the negligence of the defendant, the correct measure of damage is the difference between the market value here of the goods in the condition in which they were when shipped and their market value in the condition in which they were delivered by defendant to plaintiff.

Guy and Cohalan, J.J., concur.

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