
    Robert A. Tucker, Respondent, v. The Pennsylvania Railroad Co., Appellant.
    (City Court of New York
    General Term,
    October, 1894.).
    
      A common carrier is bound to exercise ordinary care in the shipment and transportation of fruit or other perishable property.
    Plaintiffs delivered a quantity of lemons to defendant for transportation, and tendered a shipping receipt stamped with the words “refrigerator car,” which words were erased by defendant’s agent, who stamped on the receipt the words “ not to be loaded in refrigerator car.” The lemons were shipped in an ordinary box car, although the temperature was below freezing point, and they became frozen and deteriorated in value. Held, that the fact that the agent erased the words “ refrigerator car ” did not operate to exempt the defendant from liability for loss occasioned by its own negligence.
    Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from order denying motion for a new trial.
    
      Oha/rles Gald/wéll, for respondent. ‘
    
      Robinson, Bright, Biddle ds Wa/rd, for appellant.
   Newburger, J.

On the 2d day of December,. 1890, the plaintiff’s drayman delivered forty boxes of lemons to the defendant’s receiving clerk, to be transported to Milwaukee, and was tendered a shipping receipt already filled out for signature.

The plaintiff had stamped on the face of the shipping receipt the words 61 refrigerator car.”

The defendant’s receiving clerk canceled the words £l refrigerator car,” and stamped on the face of the receipt the words “ not to be loaded in refrigerator car,” and signed it.

The lemons were put in the ordinary box car, and thereby became frosted, frozen and greatly deteriorated in value.

On the date of shipment the testimony showed the weather was very cold, the temperature ranging from twenty-eight to nineteen degrees.

The plaintiff and a number of fruit dealers testified that it would not be safe or prudent to load or transport in a box car lemons, when the temperature was below freezing point, for transportation from Hew York to Pittsburgh.

The trial justice submitted the question of negligence to the jury, who returned a verdict for the plaintiff, and from the judgment entered upon such verdict, and the order denying the defendant’s motion for a new trial, this appeal is taken.

The trial justice properly submitted the question of the defendant’s negligence to the jury to determine.

The mere fact that the shipping clerk had erased the words “ refrigerator car ” did not operate to exempt the defendant from liability for loss occasioned by its own negligence.

The defendant was bound to exercise ordinary care in the shipment and transportation of the fruit.

The testimony clearly showed that the defendant was guilty of negligence in shipping the fruit in the manner it did, and, as this is the only question raised on the appeal, the judgment must be affirmed, with costs.

Ehrlich, Oh. J., and Fitzsevions, J., concur.

Judgment affirmed, with costs.  