Gardner v. New Orleans & N.E.R. Co.

• Court: Mississippi Supreme Court
• Writing for the Court: WHITFIELD, C. J.
• Citation: Gardner v. New Orleans & N.E.R. Co., 29 So. 469, 78 Miss. 640 (Miss. 1901)
• Decision Date: 04 February 1901
• Parties: FRANK GARDNER v. NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY

29 So. 469

78 Miss. 640

FRANK GARDNER v. NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY

Supreme Court of Mississippi

February 4, 1901

FROM the circuit court of Jones county. HON. JOHN R. ENOCHS Judge.

Gardner the appellant, was the plaintiff in the court below, and the railroad company, the appellee, was defendant there. The hardware, damage to which was sued for, was shipped to appellant at Laurel, Mississippi, from Mobile, Alabama. When the car was opened at Laurel it was found that the goods (stoves) were badly rusted, and when moved considerable quantities of water fell from them. They were not otherwise damaged. The roof of the car was defective and leaky, and it was shown that heavy rains fell on the car, between Meridian and Laurel, while it was in possession of appellee, railroad company. The bill of lading mentioned in the opinion of the court was issued at St. Louis, Mo. by the Mobile & Ohio Railroad Company. The court below gave a peremptory instruction for defendant, and the plaintiff appealed to the supreme court.

Appeal dismissed. Reversed and remanded.

Shannon & Street, for appellant.

The peremptory instruction given appellee railroad company should have been refused. The burden of proof was upon appellee to exonerate itself from liability. This burden it wholly failed to meet. It is the duty of a carrier to show the absence of negligence on its part. This duty arises from the character of its occupation and from the rule of evidence requiring the facts to be proven by that party in whose knowledge they peculiarly lie. Railway Co. v. Moss, 60 Miss. 1003; Railway Co. v. Abels, Ib., 1017; Johnson v Railway Co., 69 Miss. 191; Faison v. Railway Co., 69 Miss. 569; Railway Co. v. Tupelo, etc Co., 67 Miss. 35; Express Co. v. Seide, 67 Miss. 609; Railway Co. v. Faler, 58 Miss. 911.

The last carrier will be held liable if it does not show that the loss or injury occurred on some preceding line, on the presumption that the goods delivered to the first carrier were also delivered to the last, and in the same condition in which they were started. 48 Am. & Eng. Railroad Cases, 457; 26 Fla. 143; 7 So. 544.

The last of a series of connecting lines is responsible for a loss or damage to goods occurring during transportation, subject to the limitations contained in the contract between the shipper and the company to which the goods were delivered, unless the company sued can show that the loss or damage did not occur on its line. Railway Co. v. Holloway, 9 Bax. (Tenn.), 188.

In the case at bar not only did the railway company fail to show that the damage to the stoves did not occur on its line, but, by the testimony of its own agent, it is as reasonably certain as anything can well be that the damage did occur while the stoves were in appellee's possession. If the stoves had been loaded on a leaky car it was the duty of appellee to inspect the car at the receiving point and to remedy any defects that might exist. This it failed to show was done, and it is clearly liable in the light of the rules announced in the decisions. And this is not changed by the fact that the last carrier transports the goods over its line in the foreign car in which it received them. 12 Am. & Eng. Railroad Cases, 35; 30 Minn. 438; 15 N.W. 872.

Woods, Fewell & Fewell, for appellee.

If the evidence establishes negligence anywhere along the entire line of the transportation of the goods in question (which we do not affirm), that negligence consisted in the initial carrier's (the Mobile & Ohio Railroad) forwarding the goods in an unsuitable car, a leaky car. Railway Co. v. Searles, 71 Miss. 744.

The case is not one seeking simply to hold the last carrier to accountability because it delivered the goods in a damaged condition, it not being known or appearing where the injury took place, but is one of a totally different character, one in which the party bringing suit against the last carrier shows himself whose negligence caused him injury, and what the proximate cause of that injury was. On the case made the court properly refused to call on a jury to render a verdict against one person when it was shown that another was liable for a negligent wrong.

This case must be affirmed, however, upon another and distinct ground, viz.: there is no line or word or syllable in the transcript before the supreme court, showing or tending to show, that the stoves were in good condition when received by initial carrier, or that they were in good condition when received by connecting carrier, at Meridian. The rule on this point is stated in 6 Am. & Eng. Eric. L. (2d ed.), p. 623, as follows: "The shipper makes out a prima facie case upon proof of the loss or injury and of the defendant carrier's having received the goods in good order." We need not multiply authorities, for the rule seems to be general. And especially need we not burden the court with citations from the courts of other states, for this, our own supreme court, has distinctly announced its adherence to this doctrine.

OPINION

ON JURISDICTION.

WHITFIELD C. J.

There is no...