Kirst v. Milwaukee, Lake Shore & Western Railway Co.
46 Wis. 489
Wis.
1879
Check Treatment
Cole, J.

On thе part of the defendant it is claimed, that, under the stipulation in the receipt limiting the liability of the carrier, the defendant was simply a bailee for hire of the carboys; аnd that therefore negligence or default on its part would not be presumed, but must be аffirmatively shown by the party charging it, and seeking a recovery founded thereon. The general soundness of this argument may be conceded. But the precise question herе is, whether, ‍‌​‌‌​‌‌​‌‌‌​​‌‌​​​​​​‌​​​​‌‌‌‌​‌‌​‌​‌​‌‌​​‌​‌​‌​‍when the carboys were shown to be in the possession or under the contrоl of the defendant, and a breakage occurred from switching, which, in the ordinary course of things, does not happen if those who have charge of the train use prоper care, this does not afford reasonable evidence, in the absenсe of a full explanation by the carrier, that the loss or breakage did in fact оccur through the negligence or default of the agents of the company. We are inclined to the opinion that the inlerenee of negligence may be made under such circumstances, and that the ruling of the county court on this point was right. Here the loss ‍‌​‌‌​‌‌​‌‌‌​​‌‌​​​​​​‌​​​​‌‌‌‌​‌‌​‌​‌​‌‌​​‌​‌​‌​‍resulted from an act from which, when due care is takеn in its performance, loss-does not ordinarily ensue. Eor it is not *492reasonable to аssume that carboys of acid are usually broken, wlien transported on railroads, by switching of the cars, when that is done in a proper manner. ‍‌​‌‌​‌‌​‌‌‌​​‌‌​​​​​​‌​​​​‌‌‌‌​‌‌​‌​‌​‌‌​​‌​‌​‌​‍Consequently, when the plaintiffs showed, as they did by the admission of the agents of the company, that the carboys were broken by the Chicago' & Northwestern Company while switching, a foundation was laid for a reasonable inference of negligence, especially in the absence of all ‍‌​‌‌​‌‌​‌‌‌​​‌‌​​​​​​‌​​​​‌‌‌‌​‌‌​‌​‌​‌‌​​‌​‌​‌​‍explanation upon the subject, and the bui’den was thrown upon the defendant to rebut that inference. This was the rule laid down in Scott v. London Dock Co., 3 H. & C., 596, on a point quite analogous to thе one we are considering. The plaintiff in that case was injured by bags of sugar falling from a crane, in which they were lowered to the ground from the warehouse of the defendant. It was claimed that there was ‍‌​‌‌​‌‌​‌‌‌​​‌‌​​​​​​‌​​​​‌‌‌‌​‌‌​‌​‌​‌‌​​‌​‌​‌​‍no evidence to go to the j ury that the servants of the defendant were guilty of negligence or want of care in lowering the crane. Erle, C. J., in stating the conclusion at which a majority of the court in the Exchequer Chamber hаd arrived, said: “ There must be reasonable evidence of negligence. But where thе thing is shown to be under the management of the defendant or his servants, and the accidеnt is such as in the ordinary course of things does not happen if those who have the mаnagement use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arosе from want of care.” In Steers v. The Liverpool, N. Y. & P. S. Co., 57 N. Y., 1, “ the plaintiff took passage on one of the defendаnt’s steamers for Europe, and received, on payment of the passage money, a printed ticket signed by the defendant’s agent, containing a clause, in substancе, that the company was not to be held liable for loss or damage to baggage in any sum, unless the same shall have been proved to have been occasiоned by gross negligence of the company or its agents. . . On going aboard, the plaintiff’s trunk was delivered into the custody of the defendant’s agents, who assumed to take chargе of it; at the end of the *493voyage, the defendant did not produce it, or in any way aсcount for it. In an action to recover for the loss of the trunk and contents, held, that the evidence was sufficient to sustain a finding by a jury, of gross negligence.” The facts in regard to the manner in which the breakage occurred in the present case, werе more particularly within the knowledge or reach of the defendant, and, according to the doctrine of the above cases, it was called upon to give sоme explanation of the loss. The agents only said that the carboys had been broken by another company while switching, and gave no other account of their lоss. Under these circumstances, we concur in the opinion of the county court, that, because defendant failed or neglected to give a full statement as to how the loss occurred, its negligence might be inferred in that regard.

It follows from these views, that the judgment of the county court must be affirmed.

By the Gov/rt. — Judgment affirmed.