Armstrong Rubber Co., Inc. v. Erie R. Co.

• Decision Date: 21 May 1927
• Docket Number: No. 437.,437.
• Citation: 137 A. 596
• Parties: ARMSTRONG RUBBER CO., Inc. v. ERIE R. CO.
• Court: New Jersey Supreme Court

137 A. 596

ARMSTRONG RUBBER CO., Inc.

v. ERIE R. CO.

No. 437.

Supreme Court of New Jersey.

May 21, 1927.

Appeal from the District Court of Newark.

Action by the Armstrong Rubber Company, Inc., against the Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued January term, 1927, before KALISCH, KATZENBACH, and LLOYD, JJ.

Hobart & Minard, of Newark, for appellant.

McCarter & English, of Newark, for respondent.

LLOYD, J. The Armstrong Rubber Company on June 28, 1923, shipped three bales of automobile tires from its place of business in Westhaven, Conn., to the Bergen City Transportation Company at Ridgewood in this state. The shipment was via New York, New Haven & Hartford Railroad and thence by the Erie Railroad. The tires reached Ridgewood by the Erie road on July 9th, and the consignee was notified. No response being received from the consignee, the consignor was notified of this fact. The goods were retained for 15 days under the bill of lading requirements, and at the end of that time the consignor requested that the shipment be held for a short time. This was complied with by the railroad company and the goods were kept in its warehouse. While thus stored the warehouse was broken into and the tires stolen.

In an action by the Armstrong Rubber Company in the Second district court of Newark to recover from the Erie Railroad Company for the value of the tires, the same not being delivered on demand, a motion was made for a nonsuit and refused. The defendant then proved by several witnesses full compliance with the bill of lading as to notice, both to the consignee and consignor; the request to store the tires; that on the night of August 8th, the freight house and some cars on sidings were broken into and the tires and other freight stolen; that the freight house was equipped with doors, four of which were locked from the inside and a fifth door with a spring lock from the outside. Also that all doors and windows were in good condition and properly secured. On the morning of the 9th the discovery was made that the glass panel in one door had been broken and a lock on another door also broken. The defendant in addition offered to show that there had been no robbery at the freight house in 16 years. This offer was rejected by the trial judge as irrelevant. At the conclusion of the case a motion for direction of a verdict in favor of the defendant was denied and exception noted to the court's ruling.

The trial judge rightly held that the railroad company was a warehouseman whose duty it was to use ordinary care, but left it, improperly as we think, to the jury to decide whether such care had been exercised under all the circumstances of the case. Under these instructions the jury found for the plaintiff, and from the consequent judgment the present appeal is taken.

We think the refusal to grant the motion for nonsuit was right. The proof of bailment and failure to return the tires made a prima facie case for the jury. Kittay v. Cordasco (N. J. Err. & App.) 134 A. 667. The overruling of the offer to prove the absence of previous robberies was also proper. Carter v. Allenhurst, 100 N. J. Law, 138, 125 A. 117, 34 A. L. R. 759.

The remaining and important question is whether upon the whole case it presented one for the court to rule upon as matter of law or one of fact for the jury. In determining it we must first decide whether under all circumstances the negligence which the law permits to be inferred, prima facie, from the loss, must remain throughout a question of fact for the jury, notwithstanding the strength and force of the countervailing proof; and if the rule is otherwise, Was there in the present case a complete rebuttal by the railroad company of the possible inference of negligence?

The early rule at common law was that the bailor must affirmatively prove the fact of negligence. 6 C. J. 1158, and cases cited. While some jurisdictions still adhere to the old rule it is now generally held in accordance with our own rulings that proof of loss or failure to return goods bailed is prima facie evidence of negligence. Does it follow, however, that this inference or presumption, as some authorities term it, must...