Isdaner v. Central R. Co.

• Decision Date: 18 December 1916
• Docket Number: 112-1916
• Citation: 65 Pa.Super. 156
• Parties: Isdaner, Appellant, v. Central Railroad Co. of New Jersey
• Court: Pennsylvania Superior Court

65 Pa.Super. 156

Isdaner, Appellant, v. Central Railroad Co. of New Jersey

No. 112-1916

Superior Court of Pennsylvania

December 18, 1916

Argued October 13, 1916

Appeal by plaintiffs, from judgment of C.P. No. 1, Philadelphia Co.-1913, No. 3010, for defendant n. o. v. in case of Max Isdaner and Oscar B. Schmidt, copartners trading as Isdaner &amp Schmidt, v. Central Railroad Co. of New Jersey.

Trespass to recover the value of three pieces of silk alleged to have been lost in transit. Before Bregy, P. J.

The opinion of the Superior Court states the facts.

The jury returned a verdict for plaintiffs for $ 168.75. Subsequently judgment was entered for defendant n. o. v.

Error assigned was in entering judgment for defendant n. o. v.

Affirmed.

Alfred T. Steinmetz, with him George Wentworth Carr, for appellant. -- The issuance of a bill of lading by a carrier, admitting the receipt of a case of a certain weight (weight subject to correction); no correction being made, is prima facie evidence of the receipt by the carrier of a case of that weight, and the burden of disproving the fact that the carrier has received a case of that weight is upon the carrier: Brown v. Missouri, Etc., R. R. Co., 83 Kan 574; Relyea v. New Haven Rolling Mill Co., 42 Conn 579; Yazoo & Miss. Val. R. R. Co. v. Bent, 94 Miss. 681; The Andover, 3 Blatchf. C. C. A. 303; The Colombo, 3 Blatchf. C. C. A. 521.

Arthur G. Dickson, for appellee.

Before Orlady, P. J., Porter, Head, Kephart and Williams, JJ.

OPINION

WILLIAMS, J.

Plaintiffs sue to recover the value of three pieces of silk said to have been lost in transit by the defendant under the following circumstances. Twelve pieces were packed in a box for shipment by plaintiff's consignor in the City of New York and delivered to their drayman between 11 and 12 o'clock in the morning of May 16, 1913. The box was delivered at defendant's wharf between 1 and 2 o'clock in the afternoon of the same day. When delivered to the drayman it contained twelve pieces of silk and weighed about 344 pounds. When weighed by defendant's agent shortly after it was received its weight was found to be 280 pounds and a notation of this was made by the weigher. The shipping receipt, made out by the consignor's shipping clerk for 344 pounds, was signed by the defendant's clerk before the box was weighed. The receipt contained the statement " Weight, subject to correction." The box, when finally delivered to the plaintiffs in Philadelphia contained only nine pieces of silk and weighed but a scant 280 pounds. There was nothing about the box to indicate that it had been opened. The drayman was not called as a witness, his absence being accounted for by the plaintiffs by stating that he had left the employ of the consignor and could not be found.

The court below entered judgment n. o. v. for the defendant and the only question raised is whether the plaintiffs made out a case for the jury. In a similar case, Isdaner v. Philadelphia & Reading Ry. Co., 54 Pa.Super. 509, Henderson, J., says (512): " No presumption arises under the circumstances of the case that the package was delivered at the wharf in the same condition in which it was when received by the drayman, and the burden of proof was on the plaintiffs to show that the lost silk was actually delivered to the railroad company."

The general law on the subject is in accord with the case just cited: Almon v. Chicago & N.W. Ry. Co., 163 Iowa 449, 144 N.W. 997; Thyll v. R. R., 92 A.D. 513, ...