A. J. Tower Co. v. Southern Pacific Co.

Braley, J. The plaintiff having argued only the exceptions to a refusal to give the second request for instructions and to the exclusion of evidence, the remaining exceptions must be treated as waived. On substantially similar evidence, when this case was first before us, it was decided, that there was testimony for the consideration of the jury, of a well defined, uniform and universal custom, to treat oiled clothing as inflammable, and when carried by water, because of its combustible character, to transport it on deck. It also was further held, that while knowledge of the custom by the plaintiff could be found, this question was one of fact for the jury, to whom it should have been submitted, and consequently the exceptions were sustained. Tower Co. v. Southern Pacific Co. 184 Mass. 472. At the second trial, under full and accurate instructions the jury have found that such a custom not only existed, but was known to the plaintiff. For reasons stated in the former opinion, upon these facts being established, this course of dealing became a part of the contract of shipment, and the defendant, therefore, was not liable for the loss of the plaintiff’s goods which were washed overboard while in transit. The plaintiff’s offer of evidence, that the oiled clothing made by the company was difficult to ignite, and upon ignition did not burst into flame, but only charred, was excluded properly. If combustion from extraneous causes was unlikely, there still existed [159] the probability shown by common experience of such clothing taking fire by spontaneous combustion, which, upon communication to other goods, might destroy both the cargo and the ship. Stevens on Stowage, § 803. Providence Washington Ins. Co. v. Adler, 65 Md. 162. It was to guard against this danger that the terms of the contract contained the exception as to the carriage of inflammable goods, by which the plaintiff’s right of recovery has been found to be limited. Tower Co. v. Southern Pacific Co., ubi supra. Exceptions overruled.