179 Ky. 324 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
The appellee, Plnlda Kaiser, brought this action in the Fayette circuit court, against the Merchants Transfer Company, which is a corporation doing business as a common carrier. By her petition,' she averred, that on the 20th day of April, 19Í6, she delivered to the appellant
The appellant, by its answer, admitted the delivery of the articles to it for transportation to Danville, Ky., but averred that the appellee had “fraudulently, negligently and wrongfully” and without its knowledge, placed among the goods, which she had represented to it to be household goods, and furniture, a loaded revolver, which, on the road between Lexington and Dan-ville, was discharged without fault upon the part of the appellant, and which set fire to the goods and they were consumed by the fire, including a portion of its wagon. It made its answer a counter-claim against the appellee, and prayed that the petition be dismissed, and that it recover of her the value of its wagon. The averments of the answer and counter-claim were denied by a reply, and in addition the appellee alleged that, although it might be true that the goods were set on fire by the discharge of the revolver, as alleged, that the servants of appellant in charge of the wagon and goods could have, by ordinary care, discovered the fire in time to have saved her goods from burning, as well as have saved its wagon, but that they had negligently failed to do so. The affirmative averments of the reply were denied by a rejoinder.
Upon the issues thus presented by the pleadings, the case went to trial before a jury, and the result of it was a verdict in favor of appellee against appellant for a sum of $815.00, and a judgment was rendered in favor of her against it for that sum.
. The appellant’s motion for a new trial having been overruled, it has appealed from the judgment to this court, and assigns as error (1) the refusal of the court to give two instructions asked for by it, and (2) the giving of two other instructions by the court over its objection, wherein it contends that the court misinstructed the jury as to the law, which pertains to the facts, as presented by the evidence, in the case. The court instructed the jury substantially as follows: That it 'should find a ver
, The objection made to the instructions is, that the court permitted the jury to find a verdict against the appellant, although the fire was caused by the explosion of a cartridge in the pistol, if the servants of appellant in charge of the wagon could have by the exercise of ordinary care have discovered the fire in time to have saved the goods, and could have then by the exercise of ordinary care have done so. The rejected instruction offered by the appellant presented its view of the case by directing the jury to find for the plaintiff, unless it believed from the evidence that the fire, which destroyed the goods, was caused by the explosion of a cartridge in the pistol, and if it believed that it was so caused, to find for the defendant, thus absolving the appellant from any liability on account of the' negligence of its servants in discovering the fire, or thereafter taking steps to save the goods from
It is conceded that the duty, which was incumbent upon the appellant in the transportation and delivery qf the goqds, was that of a common carrier. In other words, its obligation was that of an insurer of the safe transportation to and delivery of the goods at Danville. The carrier is liable for all loss of or injury to goods, which- he is engaged in transporting, unless the loss or injury is caused by the act of God, or of the public enemy, or of the public authority, or by the inherent nature or quality of the goods, or the act or fault of the shipper. Where the carrier relies upon the act of God, the public enemy, or the public authority, or the inherent nature or quality of the goods, or the fault of the shipper, as the reason for the loss or injury suffered by the goods, and as a defense to a recovery of him for the loss or injury, he must take the burden of so showing, from the fact that he is in possession of the goods and in a position to be able to account for loss of them or injury to them. He cannot, however, be excused, unless the loss or injury was the entire cause, for if his negligence contributed to the cause of the loss and except for his negligence the loss would not have occurred, the carrier is not excused. 10 C. J. 21; 215; 6 Cyc. 376; C. N. O. & T. P. Ry. Co. v. Rankin, 153 Ky. 730; C. & O. Ry. Co. v. Williams, 156 Ky. 114; Gaddie & Stiles v. L. & N. R. R. Co., 129 Ky. 175; Hall v. Renfro 3 Met. 51; C. N. O. & T. P. Ry. Co. v. Sanders, etc., 118 Ky. 115; Southern Ry. Co. v. Smith, 125 Ky. 656. Hence, if the facts of the case, as presented by the evidence, were such as to justify the giving of the instructions, and to make issues, in the evidence, of such as were submitted to the jury, it is apparent, that the court properly instructed the jury as to the law. The rule is, however, invoked, that, although the issue was made in the pleadings, as to the alleged negligence^ of the servants of the appellant, who were in charge of the wagon, in failing to exercise ordinary care in discovering, that, the goods were on fire and in saving them after
The court, therefore, properly rejected the instructions asked by appellant, and properly gave the ones which it gave in lieu of them.
The judgment is therefore affirmed.