10 Kan. 119 | Kan. | 1872
The opinion of the court was delivered by
The plaintiff in error (defendant below) claim that there are three questions for us to decide in this case. These ^questions are as follows: First, Whether proof -of delivery by the plaintiff to the joint agent of the defendant and the Hannibal & St. Joseph Railroad Company of cheeks of the last-named company, calling for the transportation of baggage from Quincy to Kansas City, was suffi
I. We do not think it is necessary to decide this question. It is not in fact in the case. The court below did not anywhere rule that the delivery of said checks was “sufficient evidence to go to the jury to show prima facie that the defendant received the goods.” Nor did the court even rule that all the evidence upon that subject, taken together, was sufficient evidence to show prima facie that the defendant received said goods. The most that can be claimed is, that the court ruled that the delivery of said checks to the baggage-master of the Kansas Pacific Railway Company, at Kansas City, with the understanding and agreement that said railway company should forward the goods represented by said checks from Kansas City to Junction City, was some evidence that tended to prove that the railway company received the goods, and therefore the court ruled that the said evidence was competent to go to the jury for that purpose along with the other evidence in the case tending to prove the same thing. In this we think the court was correct. It is not necessary that evidence shall prove a thing prima facie in order that it may be admitted. If it tends to prove the thing, or if it is a link in the chain of evidence that tends to prove a thing, it may be admitted. The motion of the defendants, made before the evidence was concluded, asking
II. The question whether certain articles of personal property are “passengers’ baggage,” we forbear to discuss or to decide, as the question is not in the case.
III. Without analyzing either the petition or the evidence, and without critically and in detail comparing their separate parts with each other, we would say there was no such variance between the pleadings and the proof as would defeat the plaintiff’s action. (Mo. Valley Rld. Co. v. Caldwell, 8 Kas., 244.) The plaintiff not only paid for transporting his goods by purchasing passenger tickets, but he also paid extra charges for their transportation. At New York City he paid $120 extra charges for transporting the goods to Junction City, and at Junction City he paid $15 extra charges. The $15 however was afterward returned to him. The evidence does not show that it was understood by the parties that the goods were to be personal baggage ónly, or that they'were to be transported merely as personal baggage. The evidence would tend to show otherwise. It can scarcely be supposed that the agents of the railway company could be mistaken with regard to the character of the tool chest. Those extra charges were probably required as much because the goods were not merely personal baggage as because they were over the ordinary weight carried as personal baggage. The judgment of the court below must be affirmed.