| Miss. | Apr 15, 1887
delivered the opinion of the court.
Too much importance has been attached to the countin the declaration charging appellant as warehouseman.
The second instruction for appellees, to the effect, that if the goods were delivered to the agent of appellant to be carried over its road to Hazlehurst, whenever Bowen should order them to be shipped, and they were burned before shipment, then it was incumbent on appellant to show that they were burned, without any fault on its part or that of its agents, should not have been given. Under the facts assumed by this instruction, a higher degree of proof and care, was imposed on appellant than is required by law. Whether under these facts appellant would have been a gratuitous bailee, or a bailee for hire, it was not liable for any, even the slightest fault or want of care. If a gratuitous bailee, it was liable only for gross negligence — and if a bailee for hire, only for reasonable and ordinary care.
On the facts of record, our view of the law, is, that appellant is liable, if liable at all, as carrier and not otherwise, and that upon the testimony of Bowen, after the loss was proved, the burden of proof was upon appellant to show non-liability as carrier. According to the testimony of Bowen, he delivered the baggage to the agent of appellant, to be shipped on its road to him (Bowen) at a specified place, on the evening of the next day after the delivery, unless he gave directions to the contrary. No directions not to ship were given, and after the time elapsed when they were to have been given, and after the baggage should have been shipped, it was burned in the baggage-room of appellant. It was the duty of appellant to ship on not receiving directions to the contrary. From that time it held the baggage for immediate shipment, and its lia
On the other hand, if it be true, as Walmsley testified, that it was a regulation of the railroad company, that baggage should be received only for immediate carriage, and if the baggage regulations of the company were known to Bowen, as he admitted they were, and if Walmsley took charge of the trunks as a matter of accommodation to Bowen and without any direction as to their being shipped, appellant cannot be held responsible for the loss, either as carrier or otherwise.
The objection to the testimony of Bowen, in regard to what Walmsley told him as to how the loss occurred, was not well taken. Walmsley was the proper person of whom to make inquiry respecting the lost baggage, and what he said was part of the evidence of the loss and admissible as res gestae. Thompson on Carriers of Passengers 539; Curtis v. The Avon R. R. Co., 49 Barb. 148" court="N.Y. Sup. Ct." date_filed="1867-06-03" href="https://app.midpage.ai/document/curtis-v-avon-geneseo--mount-morris-railroad-5461467?utm_source=webapp" opinion_id="5461467">49 Barb. 148; Morse v. Conn. River R. R. Co., 6 Gray 450.
The judgment is reversed and muse remanded.