Spahn & Rose Lumber Co. v. Chicago, Rock Island & Pacific Railway Co.
183 Iowa 1141 | Iowa | 1918
Evans J.
l. actual and error : inconi' petent eviiPisíiedtI?actfab’ The alleged shortage in the weight of the oar of coal shipped to the plaintiff was 4,200 pounds. The coal was shipped by the consignor from Kentucky to the plaintiff, as consignee, at Cedar Rapids. The car was invoiced to the plaintiff at 81,400 pounds of coal. It actually weighed 77,200 pounds. The principal error alleged for our consideration is that there was no competent evidence before the justice as to the original weight of the cari at the time of its consignment. For the purpose of proving such weights, the plaintiff introduced in evidence its invoice. Objection was made to the competency thereof, and a motion to strike on the same ground. While the ° question was under the consideration of the justice, the plaintiff testified, as a witness, that it paid to the defendant, as the delivering carrier, frteight charges on 81,400 pounds! This ivas in accord with the invoice. Presumptively, the defendant railway *1143company based its collection of the freight charge upon the bill of lading. Clearly, the bill of lading would have been admissible. The fact that the delivering carrier demanded and received of the consignee the freight charge on 81,400 pounds was, itself, presumptive evidence that such was the amount of coal1 delivered to the initial carrier. The admission of the invoice in evidence was, therefore, harmless.
2. justices oe THE PEACE: scope °£ err°r: It is further urged that there was not sufficient evidence that all the coal that was contained in the car when it arrived at Cedar Bapids was actually weighed by the plaintiff. Sprecher, the manager of the plaintiff, testified that he personally attended to the weighing. For that purpose the car was unloaded into wagons, and the contents were hauled three or four blocks to the scales. The time employed in making such transfer was two days. It is earnestly argued that there was no evidence to show that none of the coal was overlooked or lost or stolen. The evidence on the question was brief and without details. It is, of course, always possible that coal may be lost or stolen from a car. That is always an appropriate matter for the consideration of the court or jury, in the trial of such question. It is not necessary, as a matter of law, that such a question shall be dealt with negatively or in detail. The case ivas in the district court on writ of error only. The sufficiency of the evidence was fiot subject to its review, nor is it subject to ours. Anthes v. Booser, 112 Iowa 511. The writ was properly dismissed in the district court. — Affirmed,.
