108 P. 457 | Ariz. | 1910
This is an appeal from a judgment for $9,061, rendered by the district court of Maricopa county as damages for the loss by fire of the property of the appellee while in transit on the road of the appellant company.
The appellant, in support of its various assignments of error, has presented and urged five legal propositions: “(1) That the contract for the movement of appellee’s goods, in connection with the construction by it of appellant’s road, was valid, and it relieved appellant from liability for the loss of appellee’s goods, no matter how caused.” Appellant contends that, in handling appellee’s goods under the contract, it acted as a private carrier, and, if so, would have a right to protect itself by the exemption contained in'the contract from liability, even if occasioned by its own negligence. This was the theory upon which the appellant-tried the case in the lower court, while the theory on which the case was tried by the appellee was that the appellant acted as a common carrier, and would therefore, even under the terms of the contract, be liable for loss occasioned by its negligence.
Mr. Hutchinson, in his excellent work on Carriers, submits (1 Hutchinson on Carriers, section 48), as a test by which we can determine whether a party assumes the duties and responsibilities of a common carrier, five characteristics: “(1) He must be engaged in the business of carrying goods for others as a public employment, and must hold himself out as ready to engage in the transportation of goods for persons generally as a business, and not as a casual occupation. (2) Pie must undertake to carry goods of the kind to which his business is confined. (3) He must undertake to carry by the methods by which his business is conducted, and over his established roads. (4) The transportation must be for hire. (5) An action must lie against him if he refuses, without sufficient reason, to carry such goods for those who are willing to comply with his terms. ’ ’
Applying these tests to the appellant in the case at bar, we find that:
(1) It is engaged in the business of carrying goods for others as a public employment.
(2) It undertakes, as a business, to carry goods of the kind now under consideration. The appellant’s witnesses testified that the rate charged the appellee in the contract is less than tariff rates; that one cent per ton mile was less than the established rate charged to the public. It was conceded that it had a rate for the carrying of this particular kind of goods, and that it held itself out as a common carrier thereof.
(3) The appellant agreed to carry by its usual methods and over its established road the property, goods, and commodities
(4) The transportation must be for hire. This point is conceded as-definitely established by the facts, as well as by the wording of the agreement.
(5) An action must lie upon a carrier’s refusal, without sufficient reason, to carry such goods, if the party is willing to comply with its terms. When the freight and passengers in question were tendered to appellant at Bouse, from which point we have just stated the goods were waybilled by its agent, and transportation for the passengers was purchased from its agent, although at the reduced rates provided in the contract, there is no question but that a duty rested upon the appellant to transport the goods and employees at the rate named in the contract, and an action would lie for its refusal to do so.
The appellant, under the above rule, was a common carrier, and was, as such, transporting the goods at the time they were sidetracked at the point where they were afterward destroyed by fire. It is conceded that a common carrier may, by an agreement to that effect, based upon proper consideration, limit its liability for loss of or damage to goods of a shipper, except such as may be caused by its own negligence. Adams Exp. Co. v. Carnahan, 29 Ind. App. 606, 94 Am. St. Rep. 279, 63 N. E. 245, 64 N. E. 647. “When a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier is a corporation created for' the purpose of carrying trade, and the carriage of the articles is em
This leaves us to consider whether the loss in this instance was caused by the negligence of the appellant. The second proposition urged by the appellant is that, ‘ ‘ assuming for the sake of argument that the contract did not in law relieve the appellant from liability for the loss of the goods caused by its negligence, yet the burden was upon the appellee to show by a preponderance of evidence that some negligence of appellant was the proximate cause for the loss of the goods. This burden appellee totally failed to carry.” It is conceded that the burden was upon the appellee to prove by a preponderance of the evidence that the loss was occasioned by the negligence of the appellant, and the court instructed the jury to that effect. Appellant states that the appellee totally failed to carry this burden. The question as to whether or not the appellee met this requirement was a question of fact for the jury. The learned court carefully instructed the jury on this point as follows: “The vital question in this case is to determine whether these goods were lost or destroyed by reason of the neglect of the railroad company. Because if they were not, Grant Bros, have to stand the loss. If they were lost through the railroad company’s negligence, then the railroad company must stand it. Now, the question of whether the goods were lost through the railroad company’s negligence or not is one of fact for you to determine, and the burden of proving it is upon the Grant Bros. Construction Company, the plaintiff in this case. They must satisfy you by a preponderance of the evidence that this loss of these goods was brought about by negligence of the railroad company; if you
The facts in the ease are undisputed. There is no conflict in the testimony in regard to the facts and circumstances surrounding the shipment of the goods from Bouse, and the setting out on the sidetrack at the A. & C. Junction, of the ears and contents that were afterward destroyed by fire; but the effect of these circumstances and facts in establishing negligence on the part of the appellant might be differently construed and considered by different conscientious, intelligent men in determining the ultimate fact of negligence. For that reason, a submission of the question to the jury by the trial court was eminently proper, and for that reason it cannot be said that the appellee failed to carry the burden of proof. The determination of this question disposes of the next proposition urged by the appellant that the court erred in denying the appellant’s motion for a directed verdict.
The fourth proposition urged is the error of the court in instructing the jury. An examination of the court’s charge to the jury discloses no reversible error.
The last proposition urged is the error of the court in denying the motion to set aside the verdict and grant a new trial. In support of this no argument is offered, and it may be disposed of by saying that if the question of negligence was one of fact for the jury, and there was evidence in the record to sustain their verdict, the denial by the trial court of the motion to set aside the same was fully sustained by the record.
The appellant, although it based its first legal proposition
The record discloses no reversible error, and the judgment of the lower court is therefore affirmed.
LEWIS and DOE, JJ., concur. CAMPBELL, J., did not participate in the decision of this cáse.