Moore v. New York, N.H. & H.R. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: HOLMES, J.
• Citation: Moore v. New York, N.H. & H.R. Co., 173 Mass. 335, 53 N.E. 816 (Mass. 1899)
• Decision Date: 18 May 1899
• Parties: MOORE v. NEW YORK, N.H. & H.R. CO.

173 Mass. 335

53 N.E. 816

MOORE v. NEW YORK, N.H. & H.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1899

COUNSEL

Frank N. Nay, for plaintiff.

Benton & Choate, for defendant.

OPINION

HOLMES J.

This is an action by a passenger to recover for damage to her luggage, suffered somewhere in the course of a passage from Charleston, Tenn., to Boston. The passage was over six connecting railroads. It does not appear where the damage was done, and the plaintiff seeks to recover upon a presumption that the accident happened upon the last road.

The so-called "presumption" was started and justified as a true presumption of fact that goods shown to have been delivered in good condition remain so until they are shown to be in bad condition, which happens only on their delivery. But it was much fortified by the argument that it was a rule of convenience, if not of necessity, like the rule requiring a party who relies upon a license to show it. 1 Greenl.Ev. § 79; Pub.St. c. 214, § 12. As we, in common with many other American courts, hold the first carrier not answerable for the whole transit, and not subject to an adverse presumption (Farmington Mercantile Co. v. Chicago, B. & Q.R Co., 166 Mass. 154, 44 N.E. 131), it is almost necessary to call on the last carrier to explain the loss if the owner of the goods is to have any remedy at all. To do so is not unjust, since whatever means of information there may be are much more at the carrier's command than at that of a private person. These considerations have led most of the American courts that have had to deal with the question to hold that the presumption exists. Smith v. Railroad Co., 43 Barb. 225, 228, 229, affirmed in 41 N.Y. 620; Laughlin v. Railway Co., 28 Wis. 204; Railroad Co. v. Holloway, 9 Baxt. 188, 191; Dixon v. Railroad Co., 74 N.C. 538; Leo v. Railway Co., 30 Minn 438, 15 N.Y.W. 872; Railway Co. v. Culver, 75 Ala 587, 593; Beard v. Railway Co., 79 Iowa, 518, 44 N.W. 800; Railway Co. v. Harris, 26 Fla. 148, 7 So. 544; Faison v. Railway Co., 69 Miss. 569, 13 So. 37; Forrester v. Railroad Co., 92 Ga. 699, 19 N.E. 811. In the opinion of the court the weight of argument and authority is on that side. Mr. Justice LATHROP and I have not been able to free our minds from doubt, because we are not fully satisfied that the court has not committed itself to a different doctrine. Still it has not dealt with it in terms. In Darling v. Railroad Corp., 11 Allen, 295, the only question discussed was a question of contract. In Swetland v. Railroad Co., 102 Mass. 276, the question was as to frozen...