31 Iowa 583 | Iowa | 1871
The statements of the witnesses, that they saw a portion of the flour in controversy examined in Chicago, after, it had been delivered by the defendant to the consignee, and that it was damaged by having got wet, was certainly relevant testimony, tending to show that the flour had not been delivered in good order, which was an essential part of the plaintiff’s case; and that these witnesses did not see all of the 400 barrels examined, and could not therefore testify as to the condition of them all, did not affect the competency of their evidence in respect to the condition of the flour which they did see examined.
That these witnesses did not see all the flour examined afforded proper ground for argument to the jury upon the extent of plaintiff’s right of recovery, but was no objection to the relevancy or competency of the evidence.
The other considerations urged by counsel for appellant in respect to the incompetency of portions of the testimony contained in plaintiff’s depositions will be considered hereafter in connection with instructions relating to the proper measure of damages.
3d. “ If you find that plaintiff delivered flour to' to be transported by defendant to Chicago, 111., as claimed by plaintiff, it was the duty of the defendant to transport the flour to its destina
5th. “ If from the evidence you believe that plaintiff delivered the flour to defendant as claimed by plaintiff, and that such flour was damaged while in the custody and control of defendant, you will find a verdict for plaintiff.”
The appellants insist that these instructions were erroneous, for the reason that “ neither of them contain the exceptions to defendant’s responsibility as a carrier — the acts of God and the public enemy.” Whatever force there would be in this objection is destroyed by the fact that these exceptions a/re embraced in the third and fourth instructions given at the request of the plaintiff. It is further objected by appellant, however, that the exceptions contained in these last instructions cast the burden of proving the exceptions upon the defendant.
Ordinarily the plaintiff makes out a prima facie case by showing that he delivered his goods to the carrier in good order, and that when the carrier delivered them to the consignee they were in bad order, or in a damaged condition. The carrier may then show that the injury to the goods was- caused by the act of God or the public enemy, and thus be exonerated from liability. It has been the settled law of England for ages, and of America since its first settlement, that a common carrier is responsible for all losses except those occasioned by the act of God or the public enemy, and that the loss of, or damage done to, property in his- possession to be carried, is of itself sufficient prima facie proof of negligence. Angell on Com. Carr., §§ 67, 148, 149; 2 Kent’s Com. 597. And in all cases of loss or injury to property intrusted to a common carrier for transportation, the Tywrden of proof is upon him, to show that the loss was occasioned by the act of God
If, however, the jplamtiff’s evidence should show the circumstances which excused the defendant from liability, the plaintiff would not be entitled to a verdict, although the defendant offered no evidence; such, however, was not the fact in this case; and there was, therefore, no error in the instructions under consideration.
The rule contended for is undoubtedly the general rule. Its application, however, is not always just and proper. It might have operated in this case very severely and unjustly on the defendant, for there is evidence tending to show that when the flour came from the hands of the earlier to the consignee it was unsaleable; that it had no market value because it could not be sold at all in the market, whereas, by a trifling expense, the flour was rendered saleable. Nor is the instruction in conflict with the rule contended for by appellant; for by means of the expense incurred in cleaning the flour and rendering it marketable the amount of such expense was added to the value of the flour in its damaged condition. If the flour
Had the court given the broad general rule contended for by the counsel for defendant without qualification, and the jtirybeen convinced that the flour when and as it was delivered by the defendant was unsaleable in the market, was of no value therein, they would have been warranted in assessing the damages at the full market value thereof in good condition, resulting in a verdict against the defendant of thousands instead ’of hundreds of dollars. By the trifling expense of 25 cents per barrel, the flour, before unsaleable, was rendered fit for market; and the evidence tends to show that this expense was necessarily the result of the injury to the flour, which the plaintiff had to incur in order that the flour be at all marketable. That such expenses under such circumstances may be given by the jury as damages we have no doubt. See Angelí on Com. Carr., § 490 a/ Pierce’s Railr. Law, 465.
Y. Appellant assigns error on the overruling of his motion for a new trial on the ground that the verdict was not sustained by the evidence. We are of opinion that the
The judgment of the circuit court must be
Affirmed.