78 N.J.L. 529 | N.J. | 1909
The opinion of the court was delivered by
The case presented at the Circuit was upon a declaration which alleged that the defendant “undertook for hire, as a common carrier, to transport and carry safely” a certain stock of rags delivered to it by the plaintiff, from Atlantic City to the city of Philadelphia; and that having failed so to do, its common law liability as a common carrier attached.
Upon the trial, the plaintiff found it necessary to introduce in evidence a bill of lading issued to her by defendant at the time of the delivery of the goods for transportation; which, when admitted, was found to contain the contract of the parties, including a provision which changed the common law status of the carrier, from that of an insurer as presented by the allegation of the declaration, to that of a common carrier of limited liability. The bill of lading provided
“No carrier, or party in possession of all or any of the property herein described, shall be liable for any loss thereof or damage thereto, by causes beyond its control; or by floods or by fire; or by quarantine; or by riots, strikes or stoppage of labor; or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet or decay; or from any cause, if it be necessary, or is usual to carry such property upon open cars.”
Upon the plaintiffs case, it appeared that the goods in question were lost by fire, while in defendant’s car at Philadelphia, awaiting delivery to the consignee. The question of variance thus presented between pleadings and proof was not pressed at the trial, but the parties proceeded with the trial upon the issue thus formulated. The defendant at the close of plaintiff’s case moved for a nonsuit, which was refused, and the case was submitted to the jury, who returned a verdict for the plaintiff.
We are of the opinion that the nonsuit should have been ordered. Undoubtedly, if the plaintiff had rested upon the allegations of her declaration, without the introduction of the contract, the defendant’s common law liability, as an insurer, would be clear, and a prima facie case would have been established. Mershon v. Hobensack, 2 Zab. 372; Kinney v. Central Railroad, 5 Vroom 273.
But the introduction of the bill of lading limiting defendant’s liability, by excepting therefrom loss sustained in transit by “flood or by fire,” changed the issue, by imposing upon the plaintiff the burden of showing that the fire in question was due to the defendant’s want of due care. That a common carrier may thus limit its liability has been determined by this court. Russell v. Erie Railroad, 41 Vroom 808; Atkinson v. New York Transfer Co., 47 Id. 608.
That it may except from its general liability loss by fire to
As well as by the courts of this country and of England. Hoadley v. Northern Transportation Co., 115 Mass. 304; New York Central v. Standard Oil Co., 87 N. Y. 486; Colton v. Cleveland Railroad Co., 67 Penn. 211; Davis v. Central Vermont Railroad, 66 Vt. 290; Peek v. North Staffordshire Railway, 10 H. L. Cas. 473; Hornthal v. Roanoke Company, 107 N. C. 76.
The effect of such a limitation has been held by the Supreme Court of this state, in a case involving substantially the same charactei'istics as the case at bar, to be that “the mere non-delivery and proof of loss by lire did not make out the case of the plaintiff; which, in view of the contract of carriage, must rest upon the negligence of the carrier with respect to the loss by fire. Such negligence not appearing in the testimony of either party, the defendant was entitled to a judgment.” Michaels v. Adams Express Co., 42 Vroom 41. That such is the rule sanctioned by the general trend of authority is abundantly apparent. Coke’s Note to Southcote’s Case, 4 Coke 83; Hyde v. Trent. Nav. Co., 5 T. R. 389; Davis v. Railroad Company, 89 Mo. 340; Porter v. Chicago and Rock Island Railroad Co., 20 Ill. 407; Moore v. Michigan Central Railroad, 3 Mich. 23; Story Bailm. 549; Hut. Car. 354; 6 Cyc. 386, and cases.
Eor this reason the motion to nonsuit should have been granted, and the judgment below is therefore reversed.
For affirmance — None.
For reversal — The Chief Justice, Garrison, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill, Congdon, JJ. 14.
