55 W. Va. 181 | W. Va. | 1904
Eyland and Eankin, filed .their declaration in the clerk’s office of the circuit court of Greenbrier county against the Chesapeake and Ohio Eailway Company, averring that on the 14th day of September, 1900, plaintiff shipped, from White Sulphur Springs in said county by the defendant railway company, to the city of Newark, New Jersey, a box containing certain goods, in the declaration described, of the aggregate value of $418.21, which said defendant on the said day undertook and faithfully promised to take care of the said goods and chattels and safely and securely carry and convey the same on and by the railroad cars of said defendant from the said White Sulphur Springs to the said city of Newark, New Jersey, and there safely and securely to deliver the same for the said plaintiff; that although the said defendant had received the said goods and chattels for the said purpose, yet not regarding, its duty as. such carrier nor its promise and undertaking, had not taken care of the goods and chattels and safely and securely conveyed them and delivered them at the said city of Newark, New Jersey, but had so. carelessly and neg
The defendant entered its general plea. A jury was empaneled and the case tried and a verdict rendered in favor of the plaintiff for $418.21. The defendant filed its bill of exceptions certifying all the evidence taken in the case and showing that the defendant had moved to set aside the verdict and grant it a new trial because the verdict was contrary to law and because of improper instructions given the jury, which motion the court overruled and refused to set aside the verdict and entered judgment thereon. It appears from the evidence introduced by the plaintiffs that the box containing the goods which were shipped was tendered hy the defendant on the 28th ol November, 1900, to La Pierre Manufacturing Company at its place of business in the city of Newark, New Jersey, who refused to receive it. La Pierre Manufacturing Company being the consignee named on the box and to whom the evidence shows the box was shipped, although the declaration fails to- disclose the name of the consignee of the goods. The declaration is a declaration for the loss of the goods and yet the evidence shows that the goods were not lost, hence they must be yet in the custody and care of the defendant. The instructions numbers 1, 2, 4, 5, 6 and 7, given for plaintiff, as well as the instruction number one, offered by defendant and refused, are all based upon the theory of the declaration, that the box was lost and there is no evidence in the case upon which to base any such instructions, and therefore plaintiff’s instructions were improperly given and defendant’s instruction number 1, of the same character, was properly refused. The only instruction offered which was proper to be given was defendant’s instruction number 2, which was refused by the court, and is as follows: “The court instructs the jury, that if they find from the evidence that the defendant, or any one else offered to deliver to the consignees, La Pierre Manufacturing Co., at their place of business in
The evidence wholly fails to support the allegations of the declaration and the court having erred in giving the instructions named for plaintiff, and refused the second instruction for defendant hereinbefore set forth, the judgment must be reversed, •the verdict of the jury set aside, and the cause remanded, and the plaintiffs granted leave, if they so desire, to amend their declaration or take such other proceedings as they may be advised it is proper to do.
Reversed.