Gulf Colorado & Santa Fe Railroad v. Jones

Lewis, J. (after stating the facts.) Error is assigned upon the refusal of the court to direct a verdict for the appellant. In determining this question it is proper to keep in mind the nature of appellee’s action. While informal in statement, as is usual in courts not of record, it is, in substance, an .action for breach of duty by a common carrier, and not for breach of contract. In such action it was only necessary for appellee to prove that appellant received the property alleged to have been injured in sound condition, and that when delivered it was damaged. The fact of damage is not denied, but it is contended that the record does not show that the wire was in good condition when received by appellant. The bill of lading executed by the Atchison, Topeka & Santa Fe Railway Company must be construed as ap acknowledgment by that company that the wire was delivered to the initial carrier in apparent good, order. How otherwise could that company contract to deliver in “like good order” to the consignee or owner? Such acknowledgment is prima facie evidence that as to all circumstances which were open to inspection,, and visible, the goods were in good order when received by the initial carrier, but is subject to rebutting proof, of which there-was none in this case. Nelson vs Woodruff, 1 Black, 156; Hastings vs Pepper, 11 Pick. 43. It is true, the bill of lading, in referring to the property to be shipped, contains the phrase “contents and value unknown,” and that the Supreme Court, in Clark vs Barnwell, 12 How. 273, indicates that these [361] words, in Connection with a declaration in a bill of lading that goods are shipped in good condition, only import the carrier’s acknowledgment as to the external condition of the cases in which the goods are inclosed. This construction, however, is manifestly not applicable in this instance, where the 224 reels of barb fence wire were not unknown, but are named in the bill of lading, and were not shipped in cases, but, in the language of the court in Nelson vs Woodruff, supra, “were open to inspection, and visible.” Appellant set up the provisions of this bill of lading as a defense, and introduced it in evidence, and js bound by what the instru- • ment must be held effectual to establish, viz. that the wire was received by the first carrier in good condition. This fact being established, it devolved upon appellant to show fiiat the wire was in damaged condition when it came into ts possession. The rule is, when property is delivered to a •ailroad company, to be transported by that and other com-sanies over their respective roads to its place of destination, t is enough for the owner, in an action against the company lelivering the property, to recover damages for negligence, o show that he delivered the property to the first carrier in ¡;ood order; and the burden is then cast upon the company Lelivering the goods thus injured of proving that they were Lot injured while in its possession; or that they came to its >ossession thus injured. Smith vs Railway Co., 43 Barb. 225; Laughlin vs Railway Co., 28 Wis. 204; Burwell vs Railway Co., 94 N. C. 455; Brintnall vs Railroad Co., 32 Vt. 665; Shriver vs Railroad Co., 24 Minn. 506; Mobile & O. R. Co. vs Tupelo Furniture Manuf’g Co. (Miss.) 7 South, 279; Railway Co. vs Harris (Fla.) 7 South. 544; Railway Co. vs Barnhart, 5 Tex. Civ. App. 601, 23 S. W. 801, and 24 S. W. 331; Railway Co. vs Adams, 78 Tex. 372, 14 S. W. 666; Hutch, Carr. § 761; Schouler, Bailm. & Carr. § 605. This rule is in iarticular cases a hardship, but it rests in the necessity of-he case. Thus it is said in Laughlin vs Railway Co., cited [362] above: “As the common carrier next, in order, the defendant was bound to receive and transport the boxes when tendered. It was bound to receive them in the condition in which they were. It had no means of investigation or inquiry into their contents. It had no right to open the boxes, or examine what they contained, and, if it had, could not have detected the loss by such examination, and so have refused to receive and carry. It must take the boxes as they were, with no external signs or appearances of breaking or injury, and nothing to give warning that the contents had .been previously abstracted or removed. Under these circumstances the rule or presumption of law which makes the defendant liable for the value of the ■ goods, unless (what seems quite impossible to be done) it shows where the loss actually took place, must be supported by most clear and satisfactory reasons of policy or necessity; otherwise it should be rejected. It must be shown that greater injustice or more certain injustice will ensue from its rejection than will or may follow from its adoption. I have been, as I have said, in very considerable doubt; but examination convinces that there are such reasons, and that both principle and authority sustain the presumption. The very uncertainty which exists as to when or where the cloths were taken out, or 'in whose custody the boxes then were, and the difficulty or impossibility of ever ascertaining those facts, make the presumption absolutely necessary.” The railroad company will, in the majority of instances, be able to show the condition of the property when it comes into its hands; the owner will rarely, if ever, be able to do so. To impose the burden upon the company is to do justice in the greater number,of cases. To do so is but another expression of the rule that the party shall prove the fact in whose power it peculiarly lies. Burden o£ Proof. [362] We do not conceive that the clause in the bill of lading providing that no carrier shall be responsible for loss or [363] damage, if any, of the freight shipped, unless it is proved to have occurred during the time of its transit over the particular carrier’s line, changes the presumptive effect which the law attaches to given facts, or requires direct proof where the law has made legal presumption sufficient. Proof is proof, whether by direct evidence or force of presumption. In other words, the fact that the wire was delivered to the initial carrier in good condition raising the presumption, equivalent to positive proof, so long as it is unrebutted, that the wire was in like condition when received by appellant, coupled with the evidence of damage when the property was delivered to the owner, proves the injury during transit over appellant’s line. For these reasons, the court did not-err in refusing to direct a verdict for appellant, and for the same reasons did not err in refusing the requested charge set out in the tenth assignment of error. Common Carriers— I-’resumption as to condition of goods when received. Incompetent Evidence-Harmless Error. 2. It is urged that the wording of the court’s charge made appellant liable for the negligence of the connecting carriers, contrary to the express stipulation contained in the bill of lading. Granting that this is true, and that the stipulation against liability for the negligence of the connecting carrier is a valid one, the error becomes immaterial, in view of the conclusion already announced that the effect of the facts proven was sufficient to establish the liability of the appellant, and that the court might have so instructed the jury. The same reason disposes of the assignment of error predicated upon the action of the court in permitting appellee to testify, over objection, to the statements made in the letters of officers of different companies- other than appellant’s, as to the condition of the shipment when on their respective roads. Where the undisputed facts are sufficient to fix liability the admission of incompetent evidence to establish unnecessary facts cannot constitute reversible error. incompetent evidence sup-portea by competent evidence. 3. The court erred in permitting the witnesses Robinson and Gibson to testify that, in their opinion, the wire-was damaged $75 or $100, without proof that such witnesses were qualified, by a knowledge of the value of wire, to estimate its probable depreciation by the injuries it had suffered. Rog. Exp. Test. § 152. However, the amount of damage awarded was also established by the testimony of appellee, which was not objected to nor contradicted. We think the admission of incompetent evidence should' not reverse the judgment when the fact to prove which the evidence was introduced is established by other evidence which is not disputed. Clinton vs Estes, 20 Ark. 216. Finding no reversible error, the judgment is affirmed. Springer, C. J., concurs.