Marquette, H. & O.R. Co. v. Kirkwood

Decision Date10 November 1880
Citation45 Mich. 51,7 N.W. 209
PartiesMARQ., H. & O.R. v. KIRKWOOD.
CourtMichigan Supreme Court

There is no legal presumption against testimony given by an employe of a corporation, a party to the suit, and it is improper for the court to suggest that such evidence should be looked on with disfavor. Where goods shipped in good condition, and coming through the hands of several connecting carriers, are in an action against the last carrier, shown to have been delivered to the consignee in a damaged condition, no presumption arises from such showing alone that such damage was the fault of such last carrier more than that of the others, but the burden of proof is on the plaintiff to show that the goods were delivered to such last carrier in good order.

Error to Marquette.

W.P. Healy, for plaintiff in error.

M.H Crocker, for defendant in error.

CAMPBELL J.

Defendant in error sued plaintiff in error and recovered damages for breakage of two marble soda fountains, taken by the railroad agents at Marquette and carried, one to Negaunee, and one to Ishpeming. The fountains were packed in New York and forwarded by the New York Central Railroad, and by that company, as is claimed, turned over at Buffalo to the Lake Superior Transit Company, which is a connecting line. The transit company delivered the property at Marquette to the plaintiff in error, with which it had no business arrangements, but which was the proper carrier from Marquette to the destination of the articles. The boxes, which were marked to be handled with care, were then apparently sound except that a handle of one consisting of a strip of board was injured. Each box when opened at its destination was found to contain a fountain of which some of the marble was broken.

The testimony for plaintiff as well as that for defendant indicates that there was no appearance in either package which would indicate damages at any time, except the broken handle. There was no evidence of neglect on the part of the railroad company, and there was affirmative evidence to the contrary. It was conceded the railroad company has no means of inspecting the property. Under these circumstances the circuit court told the jury that if the goods were delivered in New York in good order to the first carrier they would have a right to infer that they continued so when received by defendant below, unless evidence was given which showed the contrary. The court also told the jury that if they found it necessary to consider the testimony given by the agents and employes of the railroad, they should bear in mind the interest they have in protecting their company and shielding themselves from blame. In doing this a very similar statement was made concerning the testimony of the packers in New York. While there may appear on the trial on direct or cross-examination such bias or behaviour as would authorize comment by counsel to the jury, we think it is not within the province of a court to instruct a jury or suggest to them that any suspicion attaches to the testimony of agents or servants of a corporation or individual by reason of their employment, or that they have any such interest as requires them to be dealt with differently from other witnesses. Even interested witnesses are now let in by statute and the policy pointed out by the statute indicates that the old presumption that interest will necessarily or probably lead to falsehood was unjust and untrue. But none of these witnesses could have been excluded under the rigid common-law rules, and whatever license of criticism may be allowed to counsel, it was not, we think, legally justifiable to invite the jury to look upon such testimony with disfavor. There is no legal presumption against it.

Upon the other question we think that the ruling was also wrong. The case comes directly within the principle laid down by this court in M., H. & O.R. v. Langdon, 32 Mich 251, where it was sought to hold these same parties responsible for delivering hay in a damaged condition, by showing that it was in good condition when delivered to a previous carrier at Sheboygan. In that case as in this the court below held that such a showing shifted the burden of proof upon the railroad company, and we held that this was error, and that the plaintiff was bound to show affirmatively that the hay was delivered in good order at Marquette, to the railroad. We think this rule is just, and are not at all disposed to depart from it. A carrier has no means in a case like this of opening packages and examining their contents. Unless there is some outward token which is suspicious he may and must take the articles and forward them on the usual terms. He is bound in law...

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