Pennsylvania Railroad Co. v. Berry

• Decision Date: 08 May 1871
• Court: Pennsylvania Supreme Court
• Parties: The Pennsylvania Railroad Co. <I>versus</I> Berry.

68 Pa. 272

The Pennsylvania Railroad Co. versus Berry.

Supreme Court of Pennsylvania.

March 28, 1871.

May 8, 1871.

March 28th 1871.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Common Pleas of Warren county: Of January Term 1871.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. R. Thompson, for plaintiffs in error, cited Horne v. N. Y. & N. H. Railroad Co. 23 Conn. 502.

W. D. Brown (with whom was J. A. Neill), for defendant in error, cited Britnal v. Saratoga Railroad, 32 Verm. 665; Beckman and Johnson v. Shouse, 5 Rawle 189; American Express Co. v. Sands, 5 P. F. Smith 140; Hawkes v. Smith, 1 Car. & M. 72; Morse v. Brainard, 8 Am. L. Reg. (N. S.) 604.

The opinion of the court was delivered, May 8th 1871, by AGNEW, J.

In view of the evidence certified to us by the judge who tried this cause, his charge was not entirely free from error. A carrier may bind himself to transport goods beyond the terminus of his own route and thus become responsible for the default of those he employs to carry the remainder of the distance, as we decided in Balt. & Philad. Railroad Co. v. Brown, 4 P. F. Smith 77; but the proof of the contract should be clear. Especially should this be the rule when the alleged contract would contradict the papers accompanying the transaction. The testimony of the plaintiff in this case was not clear on this point. He desired his furniture to be carried from Warren to Tidioute without transhipment, and spoke to the agent of the defendants for a special car to run through. The agent agreed to furnish the car, but denies any contract to carry the goods beyond Irvineton, the point of connection between the Philadelphia and Erie Railroad and the Oil Creek and Allegheny Valley Railroad. The plaintiff testifies that the contract was that the goods should go through to Tidioute without a change of cars, and that they should be charged a heavier rate for this advantage. The agent of the defendants explains this to be for car service. Now there is nothing absolutely inconsistent between this statement of plaintiff and that of Gemmil the agent. The car might be readily furnished to go through at a higher rate for car service, and yet without a contract to carry the goods beyond Irvineton. The manifest accompanying the goods is expressly from Warren to Irvineton. The sum charged in the manifest is but $8, which is proved to be the rate to Irvineton only, the residue of the freight being the charge from Irvineton to Tidioute. The release signed by Waid, who hauled the goods for the plaintiff, expressly states, "a lot of goods from Warren station to Irvineton." The copy of the receipt which Gemmil says he thinks he handed to Waid for the plaintiff when he gave the release, is express in its terms, "to be carried and delivered upon the terms and according to the agreement above specified at Irvineton station on the above railroad." Waid does not remember having taken the receipt, yet is not certain. Now, while the learned judge did not err in submitting to the jury the question of the contract on the plaintiff's testimony, as its purpose was to be determined by them, yet it is clear he did not present the case so as to enable them to understand the true character and effect of the evidence. In this respect his charge was insufficient and tended to mislead.

We think he erred also in charging upon the receipt given by the Oil Creek and Allegheny Valley Railroad Co., upon the transfer of the goods at Irvineton. While, as he stated, the receipt alone would be insufficient to account for the loss of the goods, yet he coupled this statement with an allegation that the evidence showed affirmatively that no examination of the goods had been made to disprove the fact of loss. This and other portions of the charge were calculated to leave the impression upon the minds of the jurors that the case was really barren of evidence tending to show when and where the goods were lost, and thus to cast the responsibility upon the defendants. But there were circumstances strongly favoring the defendants, if their contract for carriage ended at Irvineton. The goods left Warren at 9 o'clock A. M. of the 3d of April 1868, reached Irvineton between 10 and 11 o'clock of that day, and were transferred to the custody of the Oil Creek and Allegheny Valley Railroad Co., at 2 o'clock P. M. That all the goods were placed in the car at Warren, appears to be pretty certain. It is not probable that the articles lost were taken out in the daytime before the transfer of the car to the custody of the Oil Creek and Allegheny Valley Railroad Co. The car reached Tidioute the next day, which was Saturday, the 4th of April. The plaintiff himself admits in his testimony that he looked into the car on Saturday to see whether the goods were dry, and then saw the box of books, dining-table and box of bedding. Now the box of books and table were among the missing article...