# Lambert v. Benner

> The Superior Court of New York City · December 4, 1869 · 1 Sweeny 665

URL: https://www.frixlaw.com/law-library/cases/8372407

## Case

- **Full name:** SAMUEL A. LAMBERT and Another, and v. HIRAM BENNER and Others, and
- **Court:** The Superior Court of New York City
- **Decided:** December 4, 1869
- **Citations:** 1 Sweeny 665
- **Precedential status:** Published
- **Opinion:** Concurrence by McCunn
- **Judges:** Fithian, McCunn, Monell
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8372407

## Opinion text

McCunn, J.
(concurring). There is not a particle of evidence showing the cause of the damage to the butter; and the rule is that where the carrier has shown to the court that he has exercised all pi’oper care and diligence in stowing and taking care of his freight during its transit, the onus is thereby thrown upon the shipper; and before he can recover for negligence toward the property shipped, he must establish the fact that the injury resulted from the want of proper care on the part of the carrier whilst the goods were under his care.
Now, the proof here shows that the butter was well and carefully stowed in the forward hold, near the foremast, and in the coolest part of the vessel and the best place for stowing butter, and where the heat of the boiler could not reach or affect it. And, as I have said, there is not a lisp of evidence to the contrary of this ; it must follow, therefore, as a matter of course, that the learned Chief-Justice would have been warranted in taking the case from the jury and directing a verdict for the defendants.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8372407. Public record. Not legal advice.