Noble v. American Express Co.

234 Mass. 536 | Mass. | 1920

De Courcy, J.

This action against a common carrier is for damages to a plaster of Paris model for a bust, shipped by the plaintiff from Boston to the Roman Bronze Works, at Brooklyn, New York. The judge of the Municipal Court found for the plaintiff. The only question is whether he erred in refusing to grant the defendant’s first and second requests for rulings.

Among the rulings which the judge gave, at the defendant’s request, were these: “5. The burden of proving the defendant’s negligence is upon the plaintiff;” “12. Unless there is some evidence by which it may be determined that it is more probable that the damage was caused by negligence of the defendant rather than because of the insufficient packing of a fragile article the plaintiff cannot recover.” Accordingly we must accept this as the law of the case for the purpose of passing on the exceptions. Due effect must also be given to the judge’s rulings as to the evidentiary weight of selected parts of the testimony, although he might have refused to give those requests. See Canney v. American Express Co. 222 Mass. 348, Astrella v. Laffey, 222 Mass. 469.

Nevertheless we cannot say that the finding of negligence was unwarranted, or inconsistent with the rulings given. To begin with, there was ample evidence from the plaintiff and from the manager of the Roman Bronze Works, both experts in packing such articles for shipment, that the bust was secured and protected in a manner sufficient to guard it against all ordinary dangers of transit. It was wrapped in tissue and newspaper, surrounded with excelsior, packed in a box made of ash wood reenforced with cleats, and the cover nailed down — all by the-plaintiff himself. The box was delivered by him directly to the defendant, so that it was not handled by any intervening agency. It was marked “This end up.” “With great care.” “Plaster cast.” "Fragile.” This case was in good condition when it reached the foundry at Brooklyn; but when the bust was taken out it was discovered that the nose and mouth were broken, so that it could not -be used as a model for a cast. It could be found that the damage was not done by the plaintiff in nailing the cover upon the box. And the judge was warranted in inferring, in the absence of any explanation, that the box, which was in the sole custody of the defendant, with notice of its fragile contents, was handled in so rough and careless a manner as to cause injury to the plaster of Paris model.

Order dismissing report affirmed.