50 Pa. Super. 609 | Pa. Super. Ct. | 1912
Opinion by
The facts of this case, are recited at length at 40 Pa. Superior Ct. 212. The judgment recovered on that trial was reversed solely for the reason that in the charge of the court to the jury, a greater degree of care was exacted of the defendant than is required by the decisions of our courts, and on the trial in the present case that objection was entirely relieved in a charge that was exceptionally fair and clear. The controversy centered around one fact that was zealously urged by the plaintiff and denied by the defendant, and this was submitted to the jury as follows: “Now the question before us is, did the railroad company use reasonable care and diligence? Did they act with promptness? Did it use such care as an ordinary and prudent person would have used under the circumstances?”
The railroad company received at its station a car containing 600 bags of cement, consigned to the plaintiff at Turtle Creek freight station, on March 11 or 12,1907, and placed it on a track which was specially arranged for carload consignments. The contents of the car were destroyed on March 15, by reason of a flood of exceptionable magnitude.
Item 1 of the uniform bill of lading, under which this consignment was received, provides that “no carrier or party in possession of all or any of the property herein described shall be liable for any loss hereof or damage thereto by causes beyond its control, or by floods or by
Whether in the light of all the circumstances the defendant used reasonable care and diligence, and acted with such promptness as would be expected from a prudent person under such ominous conditions, was purely a question of fact, and this has been resolved against the company by three juries.
There was considerable of contradiction in the testimony as to the feasibility of transferring this loaded car from its dangerous location to a safer one before the waters reached a high flood stage.
The duty on the part of the company to exercise reasonable care in protecting the property was a continuing one as long as the loss was avoidable, and this, independent of the notice to be given to the consignee of the arrival of the freight. Whether notice was given or not, and even given was disputed, but if given as contended for by the
The only assignment of error being the refusal of the court to enter judgment non obstante veredicto, we overrule it and affirm the judgment.