Pennsylvania Railroad v. Berry

68 Pa. 272 | Pa. | 1871

The opinion of the court was delivered,

by A&new, J.

In view of the evidence certified to us by the judge who tried this cause, his charge was not entirely free from error. A carrier may bind himself to transport goods beyond the terminus of his own route and thus become responsible for the default of those he employs to carry the remainder of the distance, as we decided in Balt. & Philad. Railroad Co. v. Brown, 4 P. F. Smith 77; but the proof of the contract should be clear. Especially should this be the rule when the alleged contract would contradict the papers accompanying the transaction. The testimony of the plaintiff in this case was not clear on this point. He desired his furniture to be carried from Warren to Tidioute without transhipment, and spoke to the agent of the defendants for a special car to run through. The agent agreed to furnish the car, but denies any contract to carry the goods beyond Irvineton, the point of connection between the Philadelphia and Erie Railroad and the Oil Creek and Allegheny Valley Railroad. The plaintiff testifies that the contract was that the goods should go through to Tidioute without a change of cars, and that they should be charged -a heavier rate for this advantage. The agent of the defendants explains this to be for oar service. Now there is nothing absolutely inconsistent between this statement of plaintiff and that of Gremmil the agent. The ear might be readily furnished to go through at a higher rate for car service, and yet without a contract to carry the goods beyond Irvineton. The manifest accompanying the goods is expressly from Warren to Irvineton. The sum charged in the manifest is but $8, which is proved to be the rate to Irvineton only, the residue of the freight being the charge from Irvineton to Tidioute. The release signed by Waid, who hauled the goods for the plaintiff, expressly states, “ a lot of goods from Warren station to Irvineton.” The copy of the receipt which G-emmil says he thinks he handed to Waid for the plaintiff when he gave the release, is express in its terms, “ to be carried and delivered upon the terms and according to the agreement above specified at Irvineton station on the above railroad.” Waid does not remember having taken the receipt, yet is not certain. Now, while the learned judge did not err in submitting to the jury the question of the contract on the plaintiff’s testimony, as its purpose was to be determined by them, yet it is clear he did not present the case so as to enable them to understand the true character and effect of the evidence. In this respect his charge was insufficient and tended to mislead.

We think he erred also in charging upon the receipt given by the Oil Creek and Allegheny Valley Railroad Co., upon the transfer of the goods at Irvineton. While, as he stated, the receipt alone would be insufficient to account for the loss of the goods, yet he coupled this statement with an allegation that the evidence showed affirmatively that no examination of the goods had been made to disprove the fact of loss. This and other portions of the charge were calculated to leave the impression upon the minds of the jurors that the case was really barren of evidence tending to show when and where the goods were lost, and thus to cast the responsibility upon the defendants. But there were circumstances strongly favoring the defendants, if their contract for carriage ended at Irvineton. The goods left Warren at 9 o’clock A. M. of the 3d of April 1868, reached Irvineton between 10 and 11 o’clock of that day, and were transferred to the custody of the Oil Creek and Allegheny Valley Railroad Co., at 2 o’clock p. m. That all the goods were placed in the car at Warren, appears tobe pretty certain. It is not probable that the articles lost were taken out in the daytime before the transfer of the car to the custody of the Oil Creek and Allegheny Valley Railroad Co. The car reached Tidioute the next day, which was Saturday, the 4th of April. The plaintiff himself admits in his testimony'that he looked into the car on Saturday to see whether the goods were dry, and then saw the box of books, dining-table and box of bedding. Now the box of books and table were among the missing articles on the following Wednesday. It is evident, therefore, that these goods were taken out or stolen from the car after its arrival at Tidioute, rendering it probable that the others were also taken there. The plaintiff recovered for the books and table as well as all the other articles lost. Had the question upon the contract for carriage been properly submitted to the jury and found by them -to end at Irvineton, it is obvious there was ample evidence to go .to the jury tending to show that the loss occurred .after the goods came into the hands of the Oil Creek and Allegheny Valley Railroad Co.; yet the tendency of the charge was to impress the jury with the belief that the loss was unaccounted for and that the responsibility for them lay upon the defendants. Taking the charge as a whole it tended to mislead the jury, and this, as has been repeatedly said, is error: Gregg v. Jamison, 5 P. F. Smith 468; Phil. & Read. R. R. Co. v. Spearen, 11 Wright 303; Garrett v. Gonter, 6 Wright 146; Bailey v. Fairplay, 6 Binney 455, 466 ; Reeves v. Del., Lack. & West. Railroad Co., 6 Casey 454; Harrisburg Bank v. Forster, 8 Watts 304; Relf v. Rapp, 3 W. & S. 21; Hersheaur v. Hocker, 9 Watts 455; Parker v. Donaldson, 6 W. & S. 132; Bovard v. Christy, 2 Harris 267; Nieman v. Ward, 1 W. & S. 68; Keyser v. Evans, 6 Casey 507. I have collected these cases to show that the rule in recent decisions to reverse, when the effect of the whole charge is to mislead the jury, is not a novel one. It grows out of the Pennsylvania mode of bringing up the charge of the judge under the Act of 24th February 1806, reinforced by the Acts of 15th and 17th April 1856. It is ignorance of this mode which misleads those whose experience has never travelled out of the bill of exceptions given by the statute of 13 Edward II., chap. 31. The practice in this state, which under the Act of 1806 incorporates the charge into the record itself and enables an assignment of error to be made to it without any bill of exception whatever, is so well stated by Woodward, C. J., in Wheeler v. Winn, 3 P. F. Smith 122, no further comment is necessary. I may add, however, the following references to show the difference between the practice under the English statute and the Pennsylvania acts : Downing v. Baldwin, 1 S. & R. 298; Brown v. Caldwell, 10 Id. 114; Bailey v. Fairplay, 6 Binney 455, 466; Reigart v. Ellmaker, 14 S. & R. 121; Munderbach v. Lutz, 14 Id. 125. Under the Act of 1806, the evidence comes up under the certificate of the judge, the counsel being bound to make it up and present it for signature, the judge deciding what the evidence was when the counsel differ as to it. Thus the whole case is really before this court in the evidence and charge (as in the present instance), and the effect of the charge brought into view; and when it clearly tends to mislead by drawing the minds of the jury away from the true point of inquiry, or by putting aside a material aspect of the case, judicial notice will be taken of it. A charge which misleads differs from a mere omission to instruct: 6 Wright 146; 6 Casey 460. Justice demands this, and that it is the true purpose of every trial to reach.

Judgment reversed, and a venire facias de novo awarded.