Khalil A. Bistany, Appellant, v. James C. Fargo, as President of the American Express Company, Respondent

Fourth Department, March, 1912. Khalil A. Bistany, Appellant, v. James C. Fargo, as President of the American Express Company, Respondent. Carrier—negligence — damage to freight. Appeal from a judgment of the Supreme Court in favor of the defendant, entered in the Erie county clerk’s office on the 27th day of March, 1911, upon the verdict of a jury rendered by direction of the court after a trial at the Erie Trial Term. Action to recover alleged loss on barrels of “sheep guts” shipped from Constantinople, Turkey, to Buffalo, New York, alleging that the same were damaged in transit. [MAJORITY — Foote, J.:] Foote, J.: While the contents of the five barrels of sheep guts, were all to some extent, in bad order on their arrival in .Buffalo, the two barrels which were broken open were in far worse condition and their value destroyed. If the breakage of these two barrels occurred in transit, their condition was sufficient evidence of negligent rough handling to call upon the defendant to show that the damage was occasioned in a manner or at a time or place to relieve the defendant from liability under the shipping contract. We think the evidence presented a question of fact for the jury as to whether these two barrels were broken and damaged in transit or before their delivery to the drayman who took them from the station to the custom house in Buffalo. If so broken, the jury could have found that it caused or contributed to the damaged condition of the contents. For this reason we think the learned trial judge was in error in directing ■ a verdict for the defendant. The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concurred, except Kruse, J., who dissented upon the ground that it does not appear that the bad condition of the contents of the barrels was through any fault of the defendant or from any cause for which it is hable. Judgment reversed and new trial granted, with costs to appellant to abide event.