101 Ky. 658 | Ky. Ct. App. | 1897
deltveked the opinion os- the coubt.
Appellee brought suit, alleging that appellant was a com
The first objection, which is to the overruling of the special demurrer, need not be considered, as the court struck from the record the names of the consignors as plaintiffs.
It was further insisted that it was error to overrule the general demurrer to the petition, inasmuch as it contains no averment that appellee was the owner of the property injured, and no averment that plaintiff was the party with whom the contract of shipment was made.
The general rule seems to he that the petition should aver general or special ownership of the property, or that plaintiff' was the party with whom the contract of shipment was. made, (3 Encyclopedia of Pleading and Practice, 841). But there was evidence showing, and the court found as a fact, that appellee bought the goods in New York, and was, therefore, the owner; and it has been held by this court
We are of opinion, therefore, that overruling the demurrer was not error to the prejudice of any substantial right of appellant.
It is further insisted that as the court found as a fact that the glass was bought in New York, shipped to Cincinnati, and there transferred to and received by the appellant and transported to Garrollton, it follows that appellant was a connecting carrier and comes within the rule laid down in Muschamp’s case, 8 M. & W., 421, that the liability of one of .several connecting carriers, who receives goods for transportation consigned to a point beyond his own line, extends throughout the journey, until there has been a complete delivery to the consignee, unless he has made a special contract limiting his liability to his own line; and, further, that the receiving carrier is alone liable to an action, though the loss or injury may have occurred upon the line of a connect
Another objection made by appellant is that there was no proof to justify the finding of the trial court as to the negligence- of appellant. Without going into the evidence in detail, it is sufficient to say that we think the finding is supported by the evidence.
The remaining objection urged by counsel is that the captain of the boat was not permitted to state that, from his experience in handling such freight, he could state how the glass was broken, and that, in his opinion, it “had been struck in the center by some hard substance-, such as it would receive in a wreck on the railroad by being jammed against something.” We do not think this witness showed such qualifications as an expert as to entitle him to testify from an inspection of broken glass to the manner in which it had been broken.