222 Mass. 348 | Mass. | 1916
This is an action of contract or tort to recover damages for injury to the plaintiff’s goods while in the course of transportation by the defendant, a common carrier. The case comes to this court on an appeal by the plaintiff from a decision of the Appellate Division of the Municipal Court of the City of Boston dismissing the report of a judge of that court. Some of the goods in question were packed in a barrel and some were in a case. “The barrel contained dishes; straw was laid on the bottom of the barrel and on top of the straw were the dishes each wrapped in several sheets of newspaper or in cloths. On top of the dishes was laid a piece of carpet, and above that was the head of the barrel. . . . The case contained framed pictures, a graphophone, and a clock, each of these things being wrapped in bedding or clothes or pillows, but not otherwise secured in place.” When the barrel and the case arrived at the place of destination the contents of each were found to have been broken and damaged. The exterior of
-At the time of shipment the defendant delivered to the plaintiff a written receipt for the goods which recited the terms and conditions of the shipment and which provided in part as follows:
“5. The Company shall not be liable for loss, damage, or delay, caused by —
a. The act or default of the shipper or owner.
c. Improper or insufficient packing, securing or addressing.”
“6. Packages containing fragile articles or articles consisting wholly or in part of glass must be packed so as to insure safe transportation by Express with ordinary care. If not so packed and plainly marked so as to indicate the nature of the contents the Company shall not be liable for damage to such shipment unless proved to be negligent.” .
The plaintiff asked the judge to make seven rulings, the fourth and fifth of which were given. The seventh request was waived.
1. The first request, that “Upon all the evidence the plaintiff is entitled to recover,” could not have been given, because the liability of the defendant depended upon the facts as found by the judge upon conflicting evidence.
2. The second request
3. The third and sixth requests
Order dismissing report affirmed.
The second ruling requested was as follows: “2. The burden of proving that the goods were improperly packed and marked is on the defendant.”
The third and sixth rulings requested were as follows:
“3. If the court shall find that the articles in the case were each protected by burlap, bedding, or clothes, and that they were packed fairly tight, then the court shall not find that the articles in the case were improperly packed.”
“6. If the court shall find that the barrel was delivered to the carrier, the defendant, in good condition, but that when the defendant delivered the barrel to the plaintiff in Medford the barrel was broken in at the top, and if the court shall find that the defendant has not offered any evidence as to the circumstances when the top of the barrel was so broken in, the court shall find that the defendant was negligent in its handling and transportation of the barrel and that the defendant is liable for the damage to the barrel and its contents.”