40 Pa. Super. 24 | Pa. Super. Ct. | 1909
Opinion by
The plaintiff brought this action against the defendant carrier to recover the value of a monument, in the form of a marble cross, which was alleged to have been damaged by the carrier in transporting the same from Jersey City to South Bethlehem, and having recovered a judgment in the court below, we have this appeal by the defendant.
The shipment was made under the covenants of a bill of lading which exempted the carrier from any liability for loss occasioned by “breakage, chafing,” etc., and it is admitted that the loss occurred from the excepted causes, and that the burden was upon the plaintiff to produce evidence which would justify an inference that the agents of the defendant company had been guilty of negligence which caused the injury. The monument had come from Italy, and the plaintiff undertook to discharge the burden which was upon him by showing that he had examined the monument at the dock in Jersey City on July 17, 1906, and that it was then in good condition, that he had then directed his agents to cause it to be shipped to him at South
The learned judge of the court below instructed the jury, in affirming plaintiff's second point, “If the case containing the marble cross was inspected on the wharf of the steamship company and found to be intact and properly packed, and was given by the plaintiff to a drayman or other person for delivery to the Lehigh Valley Railroad Company, which company accepted the said case containing the marble cross, a presumption is created that the cross was intact and not broken when thus received by the defendant;” and this is the subject of the third specification of error. And in that part of the general charge which is the
Whether there was error in that part of the charge embraced by the first specification of error is dependent entirely upon the effect which ought to be given the shipping receipt, as evidence of the condition of the property at the time it passed into the hands of the carrier. The instrument acknowledged the receipt of “the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown);” and a description of the property is “One (1) case Cross.” The uncontradicted evidence in the case was that the cross, or monument, weighed 3,200 pounds and was inclosed in a heavy wooden case; the cross was of marble and upon one of
The judgment is reversed and a .venire facias de novo awarded.