159 Va. 694 | Va. | 1933
delivered the opinion of the court.
The plaintiff in error, who was the plaintiff in the lower court, instituted an action, by notice of motion, against the defendant in error for damages, occasioned by the theft of 170 barrels of potatoes which had been loaded in a box car cn a sidetrack of the defendant’s railroad. At the conclusion of the evidence introduced by the plaintiff, a motion was made to strike it out. The court sustained the motion, and excluded the plaintiff’s evidence; the jury found a verdict for the defendant, and the judgment here under review’ was entered.
There are two counts in the notice of motion. In the first one, the defendant was sought to be held liable as a
In the second count, the defendant was sought to be held liable as a warehouseman and on this count alone, the parties went to trial. In this count the defendant was charged with negligence and the failure to exercise ordinary care, in general terms. Whereupon the defendant asked for a bill of particulars and specifically requested that the plaintiff state of what act of negligence the defendant was guilty which caused the loss of the potatoes, in what respect did it fail to discharge its duty to the plaintiff, and wherein did the defendant fail to do or perform any duty that was the proximate cause of the loss. Whereupon the plaintiff filed a bill of particulars, but did not specify of what act of negligence the defendant was guilty, which caused the loss. It was just as general in its terms as the notice of motion. It specified no negligence on the part of the defendant.
A statement of the facts, which are not in dispute, will be given.
The plaintiff, on July 10, 1929, ordered a box car from the agent of the railroad company, to be placed on a siding at Onley, Virginia. The car was placed, and on July 11th the plaintiff’s agent began to load it with potatoes. The loading was completed on July 16th. One hundred and ninety-three barrels of potatoes had been loaded in the car and it was sealed by an agent of the railroad company, but the plaintiff gave no billing or shipping instructions to the agent of the railroad company and paid it no freight, and the car remained on the siding until July 22nd. On the 20th of July the plaintiff ordered his agent to break the seal, enter the car and inspect the contents for rotten potatoes and in obedience to that order, the said agent broke the seal and entered the car and found rotten potatoes in some of the barrels. This agent afterwards told the agent of the railroad-company that he had broken the seal and entered the car, and instructed him to seal it again, but it does not
Of course, in viewing the evidence, upon a motion to exclude it, as we must do here, we must view it in a light favorable to the plaintiff. This principle is so well defined, so specifically and completely treated and applied, by Mr. Justice Epes, in the recent case of Green v. Smith, 153 Va. 675, 151 S. E. 282, that it is only necessary to refer to that case, without quoting therefrom. In our discussion we will bear in mind that the case at bar is before us on a motion to strike the plaintiff’s evidence, which the trial court sustained, and the test as laid down in Green v. Smith, supra, will be applied.
As previously stated the plaintiff is not seeking to hold the railroad company liable as a- carrier or insurer. He bases his entire case upon the contention that the railroad company is liable to him as a warehouseman.
Two propositions of law arose upon the motion to strike the plaintiff’s evidence: (1) whether or not there had been a complete delivery of the potatoes to the railroad company prior to the theft, and (2) if there had been a delivery, whether or not the company had been shown to be guilty of actionable negligence in the care and custody of the potatoes. We express no opinion upon the first proposition stated, further than to say that the evidence shows that the custody and control of the potatoes, during the time the car was being loaded and until the loading was entirely com
As we have seen, a recovery against the railroad company, if any, must be rested upon its liability as a warehouseman. What was its liability, under the evidence of this case, as a warehouseman? In answering this question, resort must be had to the general principles of the law governing the liability of warehousemen. Those principles have been well established and settled in this country by a long line of well considered cases from nearly all jurisdictions.
It is well settled, that in the absence of a special contract, an ordinary warehouseman is not an insurer against theft, and cannot be held liable for loss of the property by this means without negligence on his part. Firestone Tire and Rubber Co. v. Pacific Transfer Co., 120 Wash. 665, 208 Pac. 55, 26 A. L. R. 217 and note at page 224.
The railroad company, in the case at bar, was liable only in case it was negligent. The burden of proving the negligence was upon the plaintiff. The potatoes were stolen out of the car while it was on the sidetrack and that fact appeared from the plaintiff’s own evidence, but it alone, does not create a prima facie presumption of negligence or lack of care and the court will not assume, in the absence of proof, that the theft of the potatoes was the result of negligence. Southern Ry. Co. v. Prescott, 240 U. S. 632, 36 S. Ct. 469, 60 L. Ed. 836; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467.
By referring to the notice of motion it will be found that no specific act of negligence was alleged. This also applied to the bill of particulars. The evidence simply shows the loss of the potatoes by theft. It entirely fails to show any negligence or want of-' care on the part of the railroad company. It was essential that the plaintiff in this case, not only specifically allege negligence but also prove it.
The principal case relied upon by the plaintiff, in support of the proposition that the case should have been submitted to the jury is Kansas City, etc., Ry. Co. v. Cox, 25 Okla. 774, 108 Pac. 380, 381, 32 L. R. A. (N. S.) 313. The main question there was whether there had been such a delivery to the railroad company, as would render it liable as a common carrier. The lower court held, as a matter of law, that the company was liable as a carrier, but upon appeal it was held that the company’s liability was that of a warehouseman. The facts in that case as shown by the opinion are: * * * “there was evidence introduced at the trial reasonably tending to prove that on the 26th or 27th of January, 1906, pursuant to the order of the plaintiff, a car was placed upon the sidetrack by the defendant at a broom corn plat
The court concluded with this correct statement of the law: “The relation of common carrier and shipper not having arisen, the railway company’s liability was that of warehouseman, and it was only liable for failure to exercise ordinary care. * * *” It thus appears that the lower court erred, in holding as a matter of law, that the company was
In the case at bar, we are of opinion that negligence was not shown against the.Pennsylvania Railroad Company and that it could not be inferred from proof of the fact that the potatoes were stolen. The failure to plead and prove negligence against the railroad company was fatal to the plaintiff’s case and the judgment will be affirmed.
Affirmed.