
    Alexander C. Reed et al., Resp’ts, v. James C. Fargo, President, etc., of the American Express Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    1. Carriers — Negligence—Restriction oe liability.
    In the absence of a receipt or other "written contract for the carriage of the goods, the carrier’s liability for the negligence of its servants cannot be restricted by proof of the plaintiffs’ knowledge of the conditions in its shipping bills or receipts, or by vague and inconclusive evidence of a paroi agreement to absolve it from liability.
    3. Same.
    In the absence of clear evidence to the contrary, it is the duty of the carrier to safely carry and deliver the goods, and it is liable for a failure to do so.
    3. Same.
    The extent of the liability of the carrier cannot be limited to fifty dollars unless a contract to that effect is shown.
    Appeal by defendant from the judgment of the county court of Seneca county, affirming a judgment of a justice of the peace recovered for damages for breaking a sewing machine which thfe defendant had contracted to transport from Waterloo, E". Y., to Auburn, 1ST. Y.
    
      Frederick L. Manning, for resp’ts; J. N. Hammond,, for app’lt.
   Macomber, J.

The machine in question was for sewing heavy leather which was used by the plaintiffs in their manufacture of neck yokes. The plaintiffs had obtained the same at Auburn a few months preceding the time in question, and it was transported to them by the defendant. The defendant’s agents at Waterloo being notified that it was the purpose of the plaintiff to return the machine to Auburn, sent to the shop and took it to the railway station. It was mounted on an iron table having four legs, three and a half feet high, the whole of which weighed .about 200 pounds. At the station the machine was placed upon its legs at the center of the platform of a hand-truck, two and a half feet high and eight feet long. The platform had stakes in front and rear, but no railing at the sides. The truck having upon it the machine so placed was dragged by two of the defendant’s men, with much effort and labor, between the railway tracks, when the ground was quite uneven, towards the express car where it was to be placed. The machine, so placed upon the car, was manifestly top-heavy, and was liable, by reason of any obstruction or inequalities in the ground, to topple over. ISTo precaution, however, was taken by the men, so far as appears, to prevent the occurrence of such an accident. From the jolting of the truck the machine was overturned, and so broken as to be utterly worthless.

An attempt has been made by the learned counsel for the appellant to show that by the previous knowledge of the plaintiffs or of their agent, there were conditions in the shipping bill or receipts given which would discharge the company from liability in this instance, but no receipt or other written contract was made for this shipment. The attempt to prove a verbal agreement between the agents of the defendant and the plaintiffs that the company should be absolved from liability by reason of taking the machine at the rates provided for encased or crated merchandise was wholly unsuccessful. The liability of a common carrier cannot be restricted by any vague or inconclusive evidence. In the absence of clear evidence to the contrary, the duty of the defendants was, for a stipulated price paid, to carry safely from the plaintiff’s store this machine and safely deliver it at the city of Auburn. They failed to do so and consequently are liable to respond in damages.

The amount of the recovery was ninety dollars, which it is shown was the exact value of the machine. The claim of the defendants that their liability was limited to the sum of fifty dollars is not tenable, for the reason that there is no proof that any contract was made thus limiting their liability.

The judgment of the county court should be affirmed.

Barker, P. J., concurs.  