
    Alexander Grieve, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Wczi'ehous&man-—burden qf proof that goods were destroyed by fire through his negligence— evidence of his negligence.
    
    In an action brought to- recover the value of goods- owned by the plaintiff, which were destroyed by fire while in the freight house of the defendant, a railroad corporation, which was liable for the' goods as a warehouseman, the plaintiff must prove that the fire resulted from the defendant’s negligence.
    Evidence given in such an action to the effect that a stove in an office situated in the freight house had, for a considerable length of time before the fire, been out of repair to such an extent that live coals had fallen- from it on several occasions; that on one occasion the office -was discovered to-be on fire from that cause; that the defendant’s agent had been notified of the dangerous condition of the stove, and that the fire in question originated in this office, and in close proximity to the stove, requires the submission to the jur.y of the question of the-.defendant’s negligence.
    
      Appeal by the plaintiff, Alexander Grieve, from an order of the Supreme Court, made at the Ontario Trial Term and entered in the office of the clerk of the county of Ontario on the 25th day of January, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      John Gillette, for the appellant.
    
      Albert H. Harris, for the respondent.
   Green, J.:

On January 31, 1894, plaintiff purchased and shipped from Buffalo twenty-five tierces of lard, which were consigned to him at Canandaigua. The lard was shipped over the road of defendant. It was received at Canandaigua February second and placed in defendant’s freight house on the next day. The plaintiff was duly notified of its arrival, but neglected to obtain the same, and it remained in the storehouse until between half-past twelve and one o’clock of February 23-24, 1894, when it, with the freight house of defendant, was consumed by fire. This action was instituted to-recover the value of the lard. Upon the trial the learned court granted a nonsuit; the plaintiff made a motion for a new trial upon the minutes of the court; it was denied, and, from the order denying such motion, this appeal was taken.

We are of the opinion that the evidence presented upon the-trial failed to establish a cause of action against the defendant as common carrier, and that its liability, if any, to the plaintiff, is that of warehouseman.

Although the relation of common carrier had terminated, the-defendant, as warehouseman, was responsible for the security and fitness of the place where the lard was stored, and was required to take the necessary precaution for the safety of the goods, and was also responsible for ordinary care and attention of its servants and agents in caring for the lard, so that the same might be delivered whenever called for. But the care which the defendant was obliged to exercise was only ordinary care and no greater than chat which an ordinarily prudent man would exercise in protecting and caring for his own property. It was, however, obligatory upon the defendant to use greater care than would have been required had it been a gratuitous bailee, for where the latter relation exists the liability is .only for gross negligence.

, . There was no opinion written by the learned trial justice upon making the order appealed from, and we are. in ignorance of the grounds of his decision. We'think it probable that such decision was based upon the ground that, under the evidence, the defendant. was, at the time of the destruction of this property, a gratuitous bailee. It appears, however, from the bill of lading and from the decisions applicable to this cáse, that the defendant, after 'its liability as common carrier had ceased, became liable for the custody of the goods as warehouseman ; and as such, if the goods were not removed within a reasonable time, was entitled to compensation for which it had a lien as warehouseman upon the lard. ' Yet, notwithstanding, the obligation rested upon the defendant as warehouseman, and, notwithstanding the destruction by fire of its warehouse and the property of the plaintiff, it was incumbent upon. the plaintiff to show that his loss was. caused by the negligence of the bailee. (Liberty Ins. Co. v. Cent. Vermont R. R. Co., 19 App. Div. 509.)

If the learned trial court granted the nonsuit on the ground .that there was not sufficient evidence of defendant’s negligence to require a submission of that question to the jury, I am of the opinion that that also was error.

In one corner of the freight house, where the property of plaintiff was stored, was an office twelve or fourteen feet square, partitioned from the balance of the warehouse; and in that office was a stove, which had been used for many years, and which the evidence discloses was somewhat out of repair and had remained so for some considerable time; that, by reason of such condition, live coals had, on several occasions, dropped therefrom to the floor beneath; and one witness testified that, in the fall previous to the destruction of the building, the floor in the. office was discovered to be on -fire, which condition, was caused by the burning coals which had dropped from the stove. There was also evidence tending to show that the woodwork in close proximity to the stove showed indications of having been scorched and burned by the heat of the stove. There was also evidence tending to show that one of the employees of the defendant had called the attention, of defendant’s agent in charge of the freight house at Canandaigua to the dangerous condition of the stove; that he acknowledged that the condition ought to be reme-, died; that he had endeavored to do so, but that he was unable to obtain from the defendant another stove. The plaintiff also gave evidence tending to show that the fire in question originated in this office and in close proximity to the' stove. This and other evidence given in behalf of the plaintiff were sufficient to require a submission to the jury of the question of defendant’s negligence.

It, therefore, becomes necessary to reverse the order and to order a new trial, with costs to the appellant to abide . the event of the action. -

All concurred. ■

Order reversed and a new trial ordered, with costs to ajipellant to abide the event.  