146 N.W. 550 | N.D. | 1914
Gross negligence — want of any care — omission — recklessness— duty — fraud.
1. Gross negligence is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically wilful in its nature. It is an omission of duty which is akin to fraud. It is the absence of even slight care.Evidence — gross negligence — not shown.
2. Evidence examined and held not to show gross negligence.Goods — freight paid — consignee — removal of part — railway company— warehouseman — storage charges — notice to relieve fromliability.
3. Where goods have been received and unloaded and the freight thereon paid by the consignee, but part only is actually and physically delivered on account of the fact that the consignee does not have drayage facilities sufficient to remove all, the liability of the railroad company as a warehouseman extends to such portion so left with it, unless at the time of such partial delivery it gives notice to the consignee that it will not insist upon storage charges and will no longer hold possession of the property as a warehouseman.Goods — depot — warehouse — stove — inflammable matter — care ofstove — question of fact for jury.
4. Where goods are placed in a depot or warehouse in a room in proximity to which is a stove which can only be regulated by opening the door, and within 3 and 6 feet of such stove is inflammable matter, it is a question of fact for the jury whether the leaving such door open in order to check the draft and prevent the fire from burning out constitutes lack of ordinary care.Conflagration — cause of — question for jury — evidence.
5. It is also a question for the jury whether the leaving such door open in the proximity of the inflammable matter was the cause of the conflagration which, it is proved, destroyed the goods, there being no other probable cause disclosed by the evidence.Plaintiff — evidence — jury satisfied — injury.
6. A plaintiff is not bound to exclude the possibility that an accident might *303 have happened in some other way than that contended for by him. He is only required to satisfy the jury by a fair preponderance of his evidence that his injury occurred in the manner he contends for.Facts — theory — different conclusions — question for jury.
7. If there be shown any facts bearing upon the question of a loss or injury and they afford room for fair-minded men to conclude therefrom that one theory of the case is better supported than the other, the question cannot properly be withdrawn from the jury.Accident — cause shown — warrantable inference — other causes —absence of proof.
8. A cause being shown which might produce an accident, and it further appearing that an accident of that particular character did occur, it is a warrantable inference, in the absence of showing of other cause, that the one known was the operative agency in bringing about the result.Evidence — uncertainty — injury — different causes — speculation— verdict — specific cause charged — probability — nonsuit — error.
9. Where in such a case the evidence is so uncertain as to leave it equally clear and probable that the injury resulted from any one of a number of causes that might be suggested, then and in that case a verdict for plaintiff would be pure speculation, and could not be sustained; but where the evidence, although circumstantial, is such that it would appear possible that the injury resulted from any one of several causes, and yet it points to the greater probability that it resulted from the specific cause charged by the plaintiff, a nonsuit should not be granted.Evidence — fair construction — negligence — conclusion.
10. If upon a fair construction that a reasonable man might put upon the evidence, or any inference that might reasonably be drawn therefrom, the conclusion of negligence can be arrived at or justified, then the defendant is not entitled to a nonsuit, but the question of negligence should go to the jury. We are satisfied that if the defendant occupied the position of a gratuitous bailee merely, it was in no way liable in this case. If it was such a bailee, it could only have been held liable upon proof of gross negligence, and no such proof is to be found in the record. Gross negligence is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically wilful in its nature. It is an omission of duty which is akin to fraud. It is the absence of even slight care. We find no proof of any such gross negligence in the case at bar.The defendant, however, was not, as we view the evidence, a gratuitous bailee. It was a warehouseman; that is to say, a bailee for hire. As such it owed a duty of the exercise of reasonable or ordinary care. It is true that the journey was over, the freight paid, and that a part of the goods were delivered. The defendant, however, still retained the remainder, and had the right to charge storage therefor, both under the terms of the bill of lading, the statute, and the common law. This really is the test of the relationship; for it would never do to allow a bailee to act under a one-sided option, and to claim and to insist upon the relationship of a gratuitous bailee if the goods were lost or destroyed while in his custody, but to claim that of a bailee for hire if, when a delivery was demanded, he was able to produce the goods. Gray v. Missouri River Packet Co.
Again in the case of Tarbell v. Royal Exch. Shipping Co. *312
In this case 63 slabs of tin were received at the port of New York. Notice was given to the consignees, who obtained a permit at the custom house for its discharge. Two days later they paid the freight, and obtained an order for the delivery of the tin, addressed to the clerk of the steamer on which it had been shipped. They left the order on the same day with the clerk, indorsed, "Deliver to our order only." On the same day the tin was discharged from the vessel. On the next day a weigher, sent by the assignees to defendant's wharf, weighed the tin and divided it into 5-ton lots. Three days later it was found that sixty-three slabs were missing; but there was nothing to show when or by whom they had been taken. The court found that the part of the wharf where the tin lay was the private wharf of the defendant. It was covered with a substantial building the doors of which were locked at night. Two watchmen were employed by the defendant to watch the wharf by day and four by night, and due care had been taken in their selection. There was also a competent person in the employ of the defendant to keep tally of the cargo taken away by merchants, and to take receipts for it. The trial court found for the plaintiff, and upon appeal the judgment was affirmed. The court, in passing upon the question, held that "under the circumstances, the defendant, under the authorities, must be held to have made delivery of the tin under its contract as carrier, and to have discharged itself from its custody as such." It, however, proceeded as follows: "There can *313 be no doubt, we suppose, that in many cases a carrier's whole duty in respect to goods carried by him is not discharged by a constructive delivery terminating his strict responsibility as carrier. Although a consignee may neglect to accept or receive the goods, the carrier is not thereby justified in abandoning them, or in negligently exposing them to injury. The law enables him to wholly exempt himself from responsibility in such a contingency by giving him the right to warehouse his goods. When this is done, he is no longer liable in any respect, and if they are subsequently lost by the negligence of the warehouseman, the carrier is not liable. Redmond v. Liverpool, N. Y. P. S. B. Co. supra, and cases cited. But so long as he has the custody of the goods, although there has been a constructive delivery which exempts him from liability as carrier, there supervenes upon the original contract of carriage by implication of law a duty as bailee or warehouseman to take ordinary care of the property. This duty of ordinary care rested upon the defendant in this case. The tin, it is true, was placed by the act of the defendant under the dominion of the consignee for the purposes of weighing and removal; but nevertheless, as between the defendant and their assignees, the actual custody of the part not removed by the consignees or their assignees remained at all times in the defendant. It was deposited on its private wharf, to which alone it, its servants, and those permitted by it, had access. The tin could not have been removed against their consent. It was, in fact, removed by someone unknown, by their tacit acquiescence, doubtless without any fraud on their part, but nevertheless its removal by a stranger was made possible by reason of an omission on the part of the defendant's servants to take the precautions against misdelivery which the defendant had deemed it proper to prescribe to prevent such an occurrence. The trial court found that the omission to take these precautions was negligence. We do not perceive why this finding is not supported by evidence. If there was negligence on the part of the servants of the defendants which occasioned or contributed to the loss, the doctrine of respondeat superior applies, and makes it in law the negligence of the defendant. The delay of the consignees in removing the tin had no legal connection with this breach of duty by the defendant, and cannot justly be considered as a concurring cause of the loss." *314
We find no cases which hold to a contrary doctrine, with perhaps the exception of Brown v. Grand Trunk R. Co.
The cases of Neal v. Wilmington W. R. Co.
In the case of New Albany S. R. Co. v. Campbell,
In the case of Chalk v. Charlotte, C. A. R. Co.
In the case at bar there is no proof of any delivery to the consignees of the articles which were destroyed. The testimony is, in fact, that when the plaintiff's secretary and treasurer "paid the freight, he took a receipt for it. Where there was only one package and it was deliverec, there was a ring placed around the figure in the column marked `Nunber of Packages,' indicating that the package was delivered. Where there wasno ring around it, it was not delivered. The barrel of linseed oil not checked off is the only item on that bill not received. The drayman put on his wagon all the other items, and undoubtedly did not have room to take it. He came up and got other goods right along, but did not get around to take this barrel. There might have been other goods that we needed more. Occasionally we specified what he was to bring, but he usually had his own way. In general he had orders to take what came first." To hold, indeed, in this case that the defendant was a gratuitous bailee merely, would be to hold that in all such cases no storage can be charged, and that consignees can impose upon the accommodations and good nature of the carrier indefinitely. Such a holding might be advantageous to the defendant in this particular lawsuit. We hardly believe, however, that it would advantage it permanently and as a general rule of business, or that the real interests of either carriers or shippers would be subserved thereby.
In the case at bar, also, there is no proof of any notice being given that no charges would be insisted upon. There is, on the other hand, proof that storage charges had occasionally been demanded in the past under similar circumstances. It certainly would have been within the power and the right of the defendant company to have demanded them if the goods had not been destroyed and had been called for some days later. The law will not allow a bailee or warehouseman in such a case to keep his intentions locked in his own breast. It is true that the evidence shows that no charges were demanded, but all we can infer from this is that no storage fees were demanded up to the time of the partial delivery, and none after the fire. There is no evidence of anything being said as to the charges on the goods retained, when they were retained, or any waiver of the right to charge therefor. Under the authorities the defendant was a bailee for hire.
We, too, concede that a bailor "seeking to recover from a warehouseman for the nondelivery of goods or an injury thereto must prove *316 negligence. When he shows that the goods were not delivered on demand or were delivered in damaged condition, he has made a prima facie case. If the defendant accounts for the nondelivery or injury by showing that the goods were stolen or were lost or damaged by fire, or in any other manner not inconsistent with the exercise of ordinary care on his part, the plaintiff's prima facie case is overcome, and he must prove positive negligence occasioning the loss:" See Schmidt v. Blood, Wend. 268, 24 Am. Dec. 153. In the case at bar, however, as before suggested, the proof shows not only the loss by fire, but the fact of an open stove in the proximity of inflammable matter, and as to whether or not this was negligence, and the cause of the conflagration, are, we believe, questions for the jury to decide.
The case of Bennitt v. The Guiding Star, 53 Fed. 937, cited by counsel for respondent, is not in point. In this case there was no proof whatever as to how the fire originated, or any explanation therefor.
The defendant then was a bailee for hire, and owed the duty of ordinary care. Whether this was exercised or not was, under the evidence, a question for the jury, and not for the court, to decide. The leaving of the door of the stove open, and its proximity to inflammable matter, were not merely possible, but highly probable, causes of the accident. Whether they were the causes or not was for a jury to decide. A plaintiff "is not bound to exclude the possibility that the accident might have happened in some other way, for that would be to require him to make his case beyond a reasonable doubt. He is only required to satisfy the jury by a fair preponderance of the evidence that the injury occurred in the manner he contends it did." Lunde v. Cudahy Packing Co.
The rule of probabilities has, perhaps, been as clearly stated by the supreme court of Idaho in the case of Adams v. Bunker Hill S. Min. Co.
The same considerations apply to the question whether the leaving of the stove door open and in the proximity of the more or less inflammable freight constituted a lack of ordinary care. Questions of negligence are primarily for the jury. The general rule is that if there is evidence tending fairly to show actual negligence on the *318
part of the defendant or even scant or slight evidence, if it is admitted without objection, the case should be submitted to the jury if it might be reasonably and properly concluded that there was negligence. A case should not be withdrawn from the jury when a recovery can be had on a view that can reasonably be taken of the facts which the evidence tends to show, and the fact that the defendant offers strong evidence showing that the plaintiff must be mistaken in his version of the accident will not justify the court in taking the case from the jury. The question of negligence, indeed, whether it be of a defendant or the alleged contributory negligence of a plaintiff, is primarily and generally a question of fact for the jury. It becomes one of law, and is withdrawable from the jury only when but one conclusion can be drawn from the undisputed facts. If the undisputed facts are of such a nature that reasonable men might draw different conclusions or deductions therefrom, then the question of negligence must be submitted to the jury. Pyke v. Jamestown,
We are satisfied that there is no proof of gross negligence in this case. Whether or not there was a lack of ordinary care, however, and whether that lack was the proximate cause of the conflagration, are, we believe, matters upon which reasonable men might differ. Such being the fact, the case should have been submitted to the jury.
The judgment of the District Court is reversed and the cause remanded for further proceedings according to law.
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