Coles v. Boston & M. R. R.

• Decision Date: 04 February 1908
• Citation: 68 A. 868,74 N.H. 425
• Parties: COLES v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

68 A. 868

74 N.H. 425

COLES

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Strafford.

Feb. 4, 1908.

Transferred from Superior Court, Strafford County; Stone, Judge.

Action by Mary M. Coles against the Boston and Maine Railroad. Facts agreed, and case transferred from the superior court. Case discharged.

Case, for negligence, whereby goods intrusted to a common carrier were lost in transit from Philadelphia to Conway Junction, Me. A few days prior to November 13, 1904, the plaintiff, who was unacquainted with the methods employed in the shipment of freight, went to the office of the Pennsylvania Railroad, told those in charge that she wished to ship her goods to Maine, described the property, and inquired if she must hire a ear. She was asked if she wished her goods to go as reasonably as possible, replied in the affirmative, and was told that she need not hire a car if she would see that the goods were well packed, and would herself come to the office when they were shipped. The person to whom she talked said that, if the goods were his, he "would let them go right along." The plaintiff went to the office when the goods were shipped, saw them weighed, and paid $10.80—the sum demanded for their transportation. A few minutes later she was called to the window and given a waybill, but nothing further was said to her. She examined the waybill to see if her name was in it, and that it receipted for her money, and then placed it in her pocket. She did not know that it limited her damages to $5 a hundredweight until she made her claim for loss against the defendant. The goods were shipped over the Pennsylvania Railroad on November 13, 1904, and a part of them were received at Conway Junction three weeks later. The plaintiff's testimony was made a part of the case. Counsel for the parties agreed as follows: (1) If on the foregoing facts the plaintiff can only recover $5 per hundredweight as damages, she is to have judgment for $120 and costs. (2) If she is not limited to $5 per hundredweight, she is to have judgment for $300 without costs.

William S. Pierce, for plaintiff. Kivel & Hughes, for defendant.

PEASLEE, J. The agreement at the close of the case may fairly be construed to mean that the defendant admits its liability as a common carrier for the full value of the property, unless facts are disclosed which limit such liability. The defendant makes this admission in its brief, and joins issue with the plaintiff on the question whether she is bound by the bill of lading. Both parties assume that the reported facts, taken in connection with the testimony of the plaintiff, present a question of law as to the written document being her contract.

Whether she assented to a contract was a question of fact. Gray v. Jackson, 51 N. H. 9, 12, 12 Am. Rep. 1. Whether there was any evidence from which it could be found that she did not assent was a question of law. Id. If the issue of fact was tried, this question of law was waived unless raised in the superior court. The sufficiency of the evidence offered to sustain a verdict upon the issue...