Plaintiff’s proof which established that the goods in question had been in all respects *634properly packed and that- at the time of their delivery in such proper condition to the carrier the latter was expressly notified of their fragile character, but that they arrived at their destination in a broken condition, sufficiently established the carrier’s liability for gross negligence in the absence of proof of due care and vigilance on the part of the carrier.
In, a case of this kind where a carrier seeks to escape lia.bility by reason of an exception embodied in his contract and an issue arises as to negligence which, if established, renders the exception unavailable, evidence of a loss or injury which would not have resulted in the ordinary course of events with proper care on the carrier’s part is sufficient to make out a prima facie case of negligence and to throw on the carrier the burden of proving due care and vigilance. 6 Cyc. 523, and eases there cited. The defendant in the present case gave no proof whatever of such care and vigilance, and even offered no explanation. The case is, therefore, completely covered by the decision of this court in Campe v. Weir, 28 Misc. Rep. 243.
I concur in the views expressed by Mr. Justice Bischoff, which fully cover all the points involved in the appeal and in the final conclusion reached by him.
Judgment reversed and judgment directed for plaintiff upon an agreed statement of facts for fifty dollars, with costs in this court and the court below.