Dow v. Portland Steam Packet Co.

• Decision Date: 28 May 1892
• Citation: 24 A. 945,84 Me. 490
• Parties: DOW v. PORTLAND STEAM PACKET CO.
• Court: Maine Supreme Court

24 A. 945

84 Me. 490

DOW

v. PORTLAND STEAM PACKET CO.

Supreme Judicial Court of Maine.

May 28, 1892.

(Official.)

Exceptions from superior court, Cumberland county.

Action by Hiram A. Dow against the Portland Steam Packet Company to recover the value of a horse and donkey delivered to defendant, as a common carrier, for transportation. Verdict for plaintiff. On motion to set aside the verdict and on exceptions. Motion and exceptions overruled.

John C. & T. H. Cobb, for plaintiff.

Benjamin Thompson, for defendant.

LIBBEY, J. The plaintiff claims to recover of the defendant company the value of a horse and a donkey which he delivered to the defendant, a common carrier by water, at Boston, to be carried to Portland. He claims that when delivered to the defendant the animals were in a good condition, and when landed at Portland the horse was paralyzed and the donkey sick, and both died in a few days from their injuries.

There was no contention between the parties as to the rules of law by which the liability of the company must be determined. The contention between them is upon the instruction of the judge as to the burden of proof in regard to the diseased condition of the animals when landed.

The portion of the charge excepted to by the defendant was as follows: "The burden, in the first instance, is on the plaintiff to satisfy you that he delivered the animals to the defendant company in good condition, and that they were not deposited on the wharf here in as good condition. When he has done that, he has prima facie made out a good case against the company. The burden then rests upon the company to satisfy you that they have fulfilled their duly as common carriers in the transportation of the animals; that they have taken good care of them, and that their sickness and death were caused by something outside of their duties, and over which they had no control."

The learned counsel for the defendant contends that this was error; that, to charge it, the burden is still on the plaintiff to prove that the sickness and death of the animals were caused by the fault of the defendant.

We think this is not so. "Although the carrier insures the arrival of the property at the point of destination against everything but' the act of God and the public enemy,' yet the condition in which it shall arrive there must depend on the nature of the article to be transported. He does not absolutely warrant live stock against the consequences of its own vitality."...