
    Stephen M. Hoye, Respondent, v. Pennsylvania Railroad Company, Appellant, Impleaded with The Westcott Express Company, Defendant.
    Second Department,
    July 24, 1906.
    Carrier—negligence — shipping receipt not conclusive as to identity of carrier — damages against one of several carriers—failure to carry “ this side up ” — failure to plead delay in presenting claim.
    When a defendant railroad company sued for damages to goods in transit seeks to escape liability upon the ground that it was an intermediate carrier based upon an unexplained receipt for the goods reading ‘ ‘ Received from the National Motor Vehicle Company by the Panhandle R. R. Co. four crates,” etc., a jury is warranted in finding that there were but two carriers when the undisputed evidence shows that the goods were received by the defendant carrier from the consignor at its station, receipted for and delivered by it to the express company in the city to which they were consigned.
    A verdict against the first carrier is justified where evidence of the condition of the goods when opened by the consignee shows that the damage must have been caused more than a week before delivery, and that the goods were in the hands of the second carrier for only two days.
    Where goods shipped in open crates, packed with excelsior and marked on top “ This side up. Batteries. Handle with care," are destroyed by failure of the carrier to keep them right side up, the question as to whether there was a breach of the contract by the carrier which, rendered it liable for the full value of the goods is for the jury.
    The defense that plaintiff failed to present his claim within the time required by the bill of lading cannot he raised unless pleaded.
    Appeal by the defendant, the Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff and against the defendant railroad company, entered in the office of the clerk of the county of Kings on the 14th day of October, 1905, upon the verdict of a jury for $325, and also from an order entered in said clerk’s office on the 16th day of October, 1905, denying said defendant’s motion for a new trial made upon the minutes.
    By the judgment appealed from the complaint, with the consent of the plaintiff, was dismissed as to the defendant The Westcott Express Company.
    
      
      Norman B. Beecher [Charles M. Hough with him on the brief]; for the appellant.
    
      I. R. Oeland [Stephen M. Hoye with him on the brief], for the respondent.
   Jebes, J.:

The defendant, a common carrier, appealing from a judgment against it for negligent carriage of plaintiff’s goods, relies upon its motion to dismiss the plaintiff at the close of his case, for it rested thereupon and took no further part in the trial.

It first contends that proof then made that the goods were delivered in good condition to the carrier, and received by the consignee in bad condition, did not establish a case against it, for the reason that there were three separate carriers, of which it was the intermediate one. But I think that the evidence justified the-jury in a-conclusion that there were but two carriers, namely, this appellant, which carried the goods from their place of shipment, Indianapolis, Ind., to the city of Hew York, and the defendant express company, which .received the goods at the appellant’s freight office in that city and delivered them to the plaintiff in another borough thereof. The appellant’s theory of three carriers rests upon the" terms of the receipt, read in evidence by the plaintiff, as follows : Indianapolis, Indiana, 4/30/1903. Received from the Rational Motor Vehicle Company by the Panhandle R. R. Co., four Crates Batteries consigned Stephen M. Hoye. Destination 49 Wall Street,’ H. Y., H. Y.” It is to be'noted that the" expression is' “ Received * * * by the Panhandle R. R. Co.”. Ho explanation is offered of its meaning, and it does not intend necessarily that there was a first and an independent carrier between the shipper and'"this appellant. For aught that appears, the Panhandle Railroad Company may have been a branch or a subordinate line of the system of the appellant. However this may be, the undisputed evidence is that the goods were shipped by the maker for carriage in Indianapolis, the place this receipt was dated, at the railroad station of the appellant, were received by it, receipted for by it and were delivered by it at its freight station as aforesaid. As the jury were warranted to conclude that there were but two carriers, the first question is whether this proof was sufficient to justify the jury in fastening the fault upon the appellant to the exclusion of the express company. The shipment was four crates containing forty electric batteries filled with electrolite. The damage was due to the overturning of the batteries so that the electrolite ran out. The evidence shows that the time intervening the shipment at Indianapolis and notice to the plaintiff of its arrival in Mew York city, was two weeks. The proof is that as soon as the plaintiff’s agent received the shipment he opened the crates and discovered the damage. There is evidence that the electrolite must have been spilled out more than a week before that time because of the condition, the appearance and dryness of the excelsior packing. The proof is that the express company received and delivered the shipment within one or at most two days. I think that the jury was justified in holding the appellant alone.

The appellant also contends that the damages were not within the reasonable contemplation of the contracting parties under the principle of the leading case of Hadley v. Baxendale (9 Exch. 341). The damages recovered were the market value of the batteries at their place, of shipment. The evidence is that when delivered the batteries were virtually useless and beyond repair. The destruction was solely due to the overturning of the batteries; there was no breakage. The batteries, as I have said, were placed in four open crates, packed with excelsior packing. On the top of each box was pasted" a bill with a label “ probably 8 by 4 ” (inches ?) in red letters: “ This side up. Batteries. Handle with care.” The damage may be ascribed to a violation of the instruction, This side up.” I think that the court would not have been justified in holding as matter of law that the loss, if due to such a violation, was not within the reasonable contemplation of the parties, but that it was for the jury to determine that if the damage was due to overturning the. crates, whether such an act was in breach of the obligation of the appellant after it had accepted for carriage these crates with this instruction or caution. Certainly such instruction was not an empty legend. Any reasonable person must conclude that it was placed upon the box for a purpose. It was no more the duty of the shipper to enter into the details of the consequence of a violation of the instruction than it was that of the carrier to ascertain it. The appellant chose to accept the shipment without objection or inquiry, and the question presented is whether it exercised due care when it carried the shipment and yet did not observe the caution. In Leonard v. New York, etc., Tel. Co. (41 N. Y. 544, 567) it is said : “ As both parties are usually equally bound to know and be informed of the facts pertaining to the execution or breach of a contract which they have entered into, I think a more precise statement of this rule is that a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach if at the time they entered into it they had bestowed proper attention upon the subject and had been fully informed of the facts.”

The point as to the failure of the plaintiff to present his claim within the period prescribed by the bill of lading cannot be raised, because such omission was not pleaded. (Westcott v. Fargo, 61 N. Y. 542.)

I advise affirmance of the judgment, with costs.

Woodward, Hooker and Miller, JJ., concurred.

Judgment and order affirmed, with costs.  