28 Pa. Super. 207 | Pa. Super. Ct. | 1905
Opinion by
This is the plaintiff’s appeal from the same judgment from which the defendant’s appeal was taken in which we herewith
The difficult question in the case is as to whether there was such a special agreement upon consideration as is referred to in the Zouch case. The plaintiffs were dealers in live stock and frequently shipped horses at the Marklesburg .station of the Huntingdon & Broad Top Railroad Company to different parts of the country. The evidence shows that it was customary for the agent of the company in filling out the shipping papers to fix the value of a horse at 1400 and that it was a rule of the company that a higher valuation could not be placed on the horse without obtaining special leave from the general manager of the road. It is to be observed, however, that the existence of this rule was not brought to the notice of the
Beginning with the shipping order and tracing the transaction to the completion of the contract it appears, first, that the plaintiffs’ agent had notice that he had an election to ship the property subject to the conditions of the uniform bill of lading, in which case it would be carried at tariff rates, or to ship it at “ carrier’s liability,” in which case the freight charges would be twenty per cent higher, subject to a minimum increase of one per cent per 100 pounds; second, that having this elec
We see no error in the refusal to affirm plaintiffs’ second point, which is quoted in the second assignment of error, and it does not seem to us that this requires a particular discussion.
The only other question that we deem it necessary to discuss is as to the burden of proof. We had occasion to consider the question in a case where there was a special contract limiting the liability of the carrier excepting where the loss or injury resulted from his own or his servant’s negligence in Needy v. Western Maryland R. R. Co., 22 Pa. Superior Ct. 489. We there said : “ It has been held that where, in case of such contract, the carrier accounts for the loss or injury in a way not to implicate himself in a charge of negligence, this is a sufficient defense, unless the plaintiff prove negligence. Hence the burden of proof was on the plaintiff where the goods were transported by the carrier to the place of destination, put into its shed on its wharf where it had four watchmen, and before the plaintiff had notice of their arrival or opportunity to re
All of the plaintiffs’ assignments of error are overruled and their appeal is dismissed, but for the reasons given in disposing of the defendant’s appeal the judgment must be reversed and a new venire awarded.