229 P. 420 | Okla. | 1924
The plaintiff alleged that it caused to be delivered to the Chicago, Rock Island Pacific Railway Company, at Walters, Okla., a shipment of oil well supplies for transportation to Cement, Okla. The plaintiff alleges that the shipment, through error, was billed and transported over the Chicago, Rock Island Pacific Railway, Santa Fe, and on plaintiff in error's line of railway to Wilson, Okla. It appears that the shipment reached Wilson, Okla., about July 2nd, and soon thereafter the plaintiff in error by written notice addressed to the defendant in error at Wilson, Okla., notified it of the arrival of the shipment. The defendant in error alleges that it did not ascertain that shipment had arrived at Wilson until near August 12th, at which time the shipment was unloaded and a portion thereof was short. The shipment consisted of numerous items of varying sizes and weights loaded in a coal car. The carriers filed their general denial in the cause, and in addition thereto plaintiff in error alleged that the defendant in error was guilty of contributory negligence in relation to the loss by reason of loading shipment into an open top coal car. In the trial of the cause the court, on a demurrer to the evidence, entered judgment in favor of the Santa Fe and Chicago, Rock Island Pacific Railway Company. On motion of the plaintiff, the court instructed the jury to return a verdict for the plaintiff and against the defendant, Oklahoma, New Mexico Pacific Railway Company. The latter defendant gave the statutory notice of appeal and made and served case-made on the plaintiff, but did not serve the same on the other two carriers. The plaintiff in error named only the plaintiff as defendant in error in the proceeding for perfecting the appeal. Among the several proceedings had in the trial court and assigned as error for reversal of the judgment, are: (1) Failure of the court to sustain demurrer to the evidence *262 of the plaintiff; (2) failure to instruct the jury to return a verdict in favor of the plaintiff in error; (3) the action of the court in sustaining motion of the plaintiff for a directed verdict on the question of liability against the plaintiff in error; (4) refusal of the court to instruct on the question of contributory negligence against plaintiff, based on the plaintiff's acceptance and loading of the shipment in an open top coal car. The plaintiff has filed motion to dismiss the appeal for failure of the plaintiff in error to name the Rock Island and Santa Fe railways as defendants in error in the petition in error, and for failure to serve case-made on the two carriers. The plaintiff evidently assumes the two carriers are necessary or proper parties to the appeal, and that the plaintiff in error has failed to perfect his appeal as to the two carriers. Consideration of the cause on its merits will facilitate disposition of the motion to, dismiss the appeal.
Going first to the claim of contributory negligence of the plaintiff in accepting an open top coal car for loading the shipment of well supplies, the receiving carrier by experience and observation, is familiar with the conditions under which a certain shipment must move over its line of railway and connecting carriers to its destination. It is reasonably advised of the dangers of loss to which the shipment is exposed by varying causes. The carrier is in a better position to judge the manner and method best suited for the transportation of the shipment than the consignor or consignee. Therefore, the carrier having undertaken and accepted responsibility for the safe carriage and delivery of the freight, is responsible for the selection of the kind and class of car in which to load and transport the freight. Ordinarily no duty rests upon the shipper to inspect the car tendered for loading the freight, or in the matter of the selection of the kind or class of car for use in the transportation of the shipment. If the freight be loaded into and transported in a car unsuited for the service, it is the responsibility and liability of the carrier. C., C. St. L. Ry. Co. v. Louisville Tin and Stove Co., 33 Ky. L. Rep. 924, 111 S.W. 358, 17 L. R. A. (N. S.) 1034; Blatcher v. P. B. W. R. Co. 31 App. Cas. (D.C.) 385, 16 L. R. A. (N. S.) 991; Peters v. N. O. J. G. N. R. Co., 16 La. Ann. 222, 79 Am. Dec. 578. The court did not commit error in refusing to submit the question of contributory negligence to the jury based on the duty of the plaintiff to inspect and select a car for the transportation of this shipment.
The validity of the court's action in instructing the jury to return a verdict for the plaintiff and against the terminal carrier is made to depend on whether the loss occurred on the line of the terminal carrier and whether the loss occurred during the obligation of the delivering line as a common carrier or warehouseman. If a shipment be delivered to a carrier for transportation over its line of railway and connecting carriers to destination, and the terminal carrier fails to deliver a part of the shipment on demand of the consignee, the presumption is that the loss occurred on the line of the terminal carrier. If the loss did not occur on its line of railway the burden of proof is upon the carrier to show that the loss occurred on the line of a connecting carrier. In the absence of proof by the terminal carrier that the loss did not occur on its line of railway, by proof of its failure to deliver a portion of the shipment it will be presumed that the loss occurred on the line of the terminal carrier, and it will be held liable in, damages to the plaintiff for such loss. K. C. S. Ry. Co. v. Carl,
The plaintiff merely proved the demand for delivery and the failure of the terminal carrier to deliver a portion of the shipment. After the relationship of common carrier has come into existence in relation to a shipment, which is lost in part, such status of common carrier will be presumed to have existed at the time of the loss. Proof by the plaintiff of the failure to deliver a portion of the shipment will cast the burden on, the terminal carrier to show that the shipment reached its destination and so continued intact until the status of warehousman came into existence The placing of such burden on the terminal carrier is sound for the reason that such carrier has the means to ascertain and know of the safe arrival of the shipment and its safe preservation during the carrier's common law liability. The means are more fully with the carrier to make this showing than the consignee; in fact, the consignee is without any reasonable opportunity or means to show that the loss occurred with the railway during the time of its liability as a common carrier. P. P. U. Ry. Co. v. U.S. Rolling Stock Company,
We will now consider the motion to dismiss the appeal, alleging the failure of the plaintiff in error to name the carriers as defendants in error in the appeal proceedings, and failure to serve case-made on the two defendants. The failure to name the two carriers as parties in the petition in error does not affect the appeal. The giving of notice of intention to appeal as provided by section 782, Comp. Stats. 1921, automatically makes all parties of record in the lower court adverse parties to the proceedings in error, upon filing the same in this court. Mires v. Hogan,
It is recommended that this cause be reversed and remanded for a new trial in accordance with the views herein expressed.
By the Court: It is so ordered.