Buck v. Pennsylvania R. R.

Opinion by Mb. Justice Green, In the main the learned court below correctly instructed the jury as to the law of the case, and in certain portions of the charge the question of the defendant’s negligence was apparently left to the jury on the whole testimony affecting that subject. The complaint, however, of the defendant is that in certain other portions of the charge the jury were wrongly instructed as to the burden of proof, and were told that unless the defendant proved just how the injury to the stoves was inflicted a conclusive presumption of negligence arose, “ and the defendant must be regarded as an insurer and not as a bailee for hire with a limited liability^- under the contract.” It is of course not disputed under our decisions that the carrier of goods may limit his liability except as against his own negligence, and in that event the liability depends upon the proof of negligence in fact. If no explanation whatever is given as to how the injury occurred a presumption of negligence arises which is sufficient to justify a recovery in cases where there is no other proof than of the delivery of the goods to the carrier in good condition, and their arrival at the point of destination in a damaged condition. Such were the cases of the American Express Co. v. Sands, 55 Pa. 140, and Grogan & Merz v. Adams Express Co., 114 Pa. 523. On the other hand where there is proof of the fact of the injury and the manner of its occurrence in circumstances which did not import negligence of the defendant, there is no liability of the carrier whose contract was for a limited liability only, except upon proof of negligence-as an inducing cause of the injury and the burden of making such proof is upon the plaintiff. Such are the cases of Farnham v. Camden & Amboy R. R. Co., 55 Pa. 53; and Patterson v. Clyde, 67 Pa. 500. In the latter of these cases Mr. Justice Agnew said, speaking of the carrier: “ When he has shown a loss within the exception of his contract, without apparent negligence, he has brought himself within the terms of his bargain. On what [178] principle is that, bargain to be nullified by requiring of him the production of that evidence, the loss or difficulty of obtaining which was the very reason for limiting his responsibility.” In that case the ship was destroyed by a fire at sea with all her cargo but without proof as to the manner of'the accident ■and it was held there was no liability without affirmative proof ■of negligence the burden of which rested upon the plaintiff. In the case of Penna. R. R. Co. v. Raiordon, 119 Pa. 577, a right of recovery also was denied because there was no affirmative proof of negligence given by the plaintiff. The freight ■carried was a horse under a limited liability contract, and it was shown that the animal was in good condition when shipped but was found dead when the car was opened. There was no proof as to how the animal died but there was proof that no accident happened to the train or the ear in which the horse was placed. We held that in the absence of proof as to how the horse died and of any proof of negligence by the defendant there could be no recovery. Our brother Williams said: “ If for any reason an ‘ injurious accident ’ happens to, or by reason of, that which the carrier provides for the transportation, the law, which imposes the exercise of the utmost care upon him, presumes the accident to be due to the want of that care and puts upon him the duty of successfully relieving himself from that presumption. But when the fact of an ‘ injurious accident ’ is not shown to exist, the presumption which arises from it cannot be invoked by a plaintiff.” We held that in the absence of any proof of the happening of an accident or the negligence of the carrier, the court below should have given a binding instruction to- find for the defendant. In the case of the Phœnix Pot Works v. Railroad Co., 139 Pa. 284, which was very like the present case, we held it was for the jury to say whether upon the whole testimony the injury to the freight was occasioned by the negligence of the defendant. There was proof that the pots were carefully packed,. and that there was no collision or derailment on the way. There was no direct testimony as to how the injury occurred or of any specific negligence on the part of the defendant. The court below left the case to the jury saying to them: “ It is for you to say whether there was any negligence on the part of the railroad company,” and we affirmed the correctness of this direction. [179] Recurring now to the present case it is plain that it was for the jury to say upon all the evidence whether the defendant was guilty of negligence in the transportation of the stoves which resulted in their injury. We think the charge went rather too far in the direction of instruction that the defendant must show how the injury was occasioned, implying that the very circumstances of the damage must be proved by the defendant in order to relieve themselves of the charge of negligence. There can be no doubt that the fact of a shipment in good order and a delivery in bad order is evidence of negligence of itself, but it is evidence only and must be considered along with all the other evidence by the jury. There was evidence that the stoves were carefully packed and that there was no kind of collision or accident of any description in the course of the transportation. The defendant was entitled to the benefit of this proof upon their general allegation of due care and to have it considered by the jury although they could not or did not prove affirmatively just how the injury was occasioned. The court did in substance leave the whole case to the jury on the general allegation of negligence, but also instructed them, particularly as complained of in the fourth assignment, that unless the defendant showed how the accident occurred, the legal presumption arose that they were liable for the damage. The effect of such instruction would naturally be to lead the jury to believe that they must find for the plaintiff unless the defendant had -shown distinctly the actual facts and circumstances of the accident to the stoves. This of course might be entirely impossible and yet from the other facts in the case the jury might be satisfied that the stoves were not injured in consequence of any neglect of the defendant. There was proof that the stoves were exceedingly brittle and that they were likely to break upon the mere handling of them and without any jarring or jolting of the cars. If notwithstanding the regular and entirely careful handling of the stoves by the defendant, they were liable to break without any negligence of the defendant, that circumstance might fairly be considered by the jurjr as relieving or tending to relieve the defendant from the charge of negligence. But under the charge it was apparently an essential prerequisite to freedom from an imputation of negligence that the defendant must [180] show the actual facts and circumstances of the accident. While such proof manifestly does impose the burden of proof of negligence upon the plaintiff, if it shows the accident occurred without negligence of the defendant, it seems to us that its absence does not deprive the defendant of the right to have the question of negligence considered upon all the testimony. These views impel us to sustain the first five assignments of error. The remaining assignments are not sustained. Judgment reversed and new venire awarded.