Opinion
March, 1907.
Owen Sturges (Frank D. Sturges, of counsel), for appellant.
Manheim Manheim (Jacob Manheim, of counsel), for respondents.
This action was brought to recover the value of a case of clothing shipped by the plaintiffs at New York by defendant's line and consigned to J.L. Lapidus, Denver, Colo. The jury rendered a verdict in plaintiffs' favor; and, from the judgment for $413.90 entered thereon, the defendant has appealed. The receipt of the property is admitted by the defendant. From the bill of lading it appears that one case of clothing, consigned to J.L. Lapidus, Denver, Colo., was received by the defendant July 18, 1903, to be forwarded on the steamship Jamestown sailing July 18, 1903. The bill of lading also provided that the defendant might deliver the merchandise to another carrier on the route to the destination, if the destination were not on defendant's own line. The defendant claims to have taken the merchandise to Newport News, Va., and there to have delivered it to the Chesapeake and Ohio Railroad for transportation to Denver. There is practically no dispute in the testimony. It appeared in evidence that Denver was not on the defendant's line; that Newport News was one of the southern terminals of the defendant for goods destined for Denver, Colo., and that the Chesapeake and Ohio Railroad, at the time in question, received goods at Newport News for transportation west. If, then, this merchandise was delivered to the Chesapeake and Ohio Railroad by the defendant for shipment to Denver, it was absolved from liability for the loss and the judgment should have been for the defendant. Article 5, Indorsed on Bill of Lading. See also Root v. Great Western R. Co., 45 N.Y. 524; Farnsworth v. N YC. H.R.R.R. Co., 88 A.D. 320, cited in Isham v. Erie R.R. Co., 112 A.D. 612, 615. To sustain the claim of delivery to the Chesapeake and Ohio Railroad at Newport News, the defendant introduced the testimony of Mr. Trice, taken under a commission. He testified that, in July, 1903, he was loading clerk for the Chesapeake and Ohio Railroad Company, at their pier No. 6, Newport News, and had occupied that position for about six years. He stated that he had to do with the case of goods in question and had loaded it in Baltimore and Ohio car No. 91440, July 20, 1903. This witness testified from recollection refreshed by a memorandum made by him at the time in the usual course of his business as loading clerk. This memorandum was a check mark made by him opposite the name of J.L. Lapidus on his loading sheet a copy of which is in evidence. The witness testified, in effect, that he made the mark as the case was placed on the car No. 91440. This testimony was uncontradicted and the witness was in no wise impeached. Nor was any objection taken to any part of his testimony. By reference to the loading bill used by him to refresh his recollection, it clearly appears effective to aid him in that respect. There appear several entries upon this loading bill that might naturally call to the witness' mind the facts testified to by him. The name of J.L. Lapidus as consignee, the letters "Cs. Clo." as the merchandise consigned, the marks "Jas. 169" as the carrier from whom the railroad received the merchandise, the point of shipment, the destination, the number of the car and the date of loading doubtless made the refreshing of his recollection comparatively easy. Under the circumstances the learned court might have taken the case from the jury and rendered judgment for the defendant. The jury, obviously, wholly disregarded the testimony as to the delivery to another carrier at Newport News and rendered a verdict contrary to the evidence.
The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.
GILDERSLEEVE and HENDRICK, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.