54 Pa. Super. 485 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff sues to recover the value of a trunk and its contents which he alleges were lost through the negligence of the defendant company, a common carrier. The first contention of the defendant is there is no sufficient evidence to warrant a finding that said trunk was ever delivered to it for transportation. Of course the burden was on the plaintiff to prove, by the fair weight of the evidence, this fundamental fact; but it does not follow it could be established only by the direct and positive evidence of eyewitnesses. If the conclusion that it was so delivered is an inference which would naturally be drawn by reasonable men from other facts established, then the fact of delivery is sufficiently proven.
The evidence offered, which, is without dispute, tended to show the following facts: The plaintiff and his wife, in the course of a summer excursion through the New England states, had reached the Hotel Wentworth at Portsmouth, New Hampshire. They determined to send by express their trunk, packed with clothing they would not thereafter require, to their home at Langhorne, Pennsylvania. The trunk was so packed, was properly tagged by the plaintiff with a card containing his name and address, and turned over to the regular baggage porter at the said hotel with instructions to deliver it to the local express company. This was on August 17, 1909. As the plaintiff was then leaving the hotel, and as it was not known what the exact amount of the ex
But the defendant, conceding, for the sake of the argument, that the trunk of the plaintiff was delivered to it at New York, stoutly insists there is no sufficient evidence to warrant a finding that it then contained the articles which had been placed in it by the plaintiff and his wife on the day before when they packed it at Portsmouth. It is urged it was incumbent on the plain
As there was evidence, however, showing the value of the trunk itself independent of its contents, and its loss resulting from the negligence of the defendant, the learned court below could not have properly directed a verdict in favor of the defendant nor thereafter entered judgment non obstante veredicto. The first assignment of error, resting upon the refusal of the court to enter such judgment, was the only one pressed at the argument. But the defendant, under the conditions now existing, is not to be deprived of the benefit of any of the other assignments because they were not so pressed at the argument. As the law of Pennsylvania down to that time had been declared to be, in the decisions of this court and of the Supreme Court of Pennsylvania, the legal position contended for by the defendant,, raised by these assignments, was untenable. The defendant had steadily insisted in a number of cases that its liability, in interstate shipments, was regulated by the terms of the bill of lading which the federal statute required it to issue in each case, and that the obligations therein set forth were valid and binding on the shipper in accordance with the interpretation that had been given them by the federal courts. Whilst therefore the assignments of error raising this question were not pressed at the argument before us, they were filed for the very purpose that their standing might be maintained if the supreme court of the United States should in the meantime determine the question adversely to the view so long held by the courts of Pennsylvania.
Since the trial of the present case, and since its argument in this court, the United States supreme court has delivered opinions in at least two cases which appear to have put this question finally at rest: Adams Express Company v. Croninger, 226 U. S. 491; C., B. & Q. Ry. v. Miller, 226 U. S. 513, The decisions of that tribunal
There was evidence offered which, if accepted by the jury after proper instructions, would have warranted a finding that the initial carrier had issued the ordinary receipt or bill of lading required by the law and that no special value had been stated to the carrier and no rate above the ordinary one, based on a valuation of $50.00, had been paid. An effort was made by the defendant to have the plaintiff produce in court such receipt or waybill, but it was held that its production was immaterial.
If upon a new trial the evidence should establish the necessary facts, the plaintiff would be entitled to have his second point, third assignment, affirmed. The same is true of the defendant’s third point, the subject of the fourth assignment. The learned trial judge, in refusing these points, was of course but following, as he was obliged to do, the decisions of the appellate courts of his own state. For the reasons we have given, however, the case would necessarily be retried along somewhat different lines. The third and fourth assignments are sustained. The remaining ones do not, as we view them, exhibit any reversible error in the action of the court below, and they are accordingly overruled.
Judgment reversed and a venire facias de novo awarded.