G. W. Faison & Son v. Alabama & Vicksburg Railway Co.

69 Miss. 569 | Miss. | 1891

Campbell, C. J.,

delivered the opinion of the court.

As the defendant was the last of successive carriers, having independent lines of carriage, but carrying continuously in pursuance of through bills of lading, and the car containing all the boxes at Chattanooga, where according to the evidence they were last seen, afterwards came, to the possession of the defendant, it devolved on it to show that the missing box was not in the car when received by it. The evidence warrants the belief that all the cases or boxes were delivered, at Chattanooga, to the Alabama Great Southern Railroad Company, and put in a car, which is alluded to as having been “sealed,” and probably was, and this car was received by the defendant at Meridian, but when and in what condition, as to seals or contents, is not shown. One box or case of goods was missing at Vicksburg, on the arrival and opening of the car there. When or where or how the box got out of the car is not shown. The argument is, that as the car was “sealed” at Chattanooga, and as it had no “end windows,” there was no way of getting at its contents en route, without breaking the seals, and it must be assumed that one of the boxes was not, in fact, delivered to the connecting road at Chattanooga, and, therefore, did not come to the possession of the defendant. If this argument were supported by the .evidence, a different question would be presented, but it is not supported by evidence. It is not shown that the car was sealed at Chattanooga so as to deny access to its contents without breaking the seals. It is not shown that the seals remained as put on. All is conjecture and unsatisfactory inference as to that." It does appear that nearly two weeks elapsed after the delivery of the goods at Chattanooga and their arrival at Vicksburg, and the car is not accounted for during that time; and it is shown that somewhere one of the cases or boxes was'“ recoopered.” There is no hint that this occurred before delivery of the goods at Chattanooga.- It must be assumed that it was done after delivery at Chattanooga. To do this, it was necessary to get at the ease or box. This may have been done after the car came into the hands of the defendant. It was for it to show that it did not. It failed to exculpate itself by overthrowing the presumptions against it, and must be held liable for the loss, which may have occurred on its line of carriage.

The judgment should have been for the plaintiffs, and the judgment rendered will be

jReversed and cause remanded for a new trial.