Nollman v. New York, New Haven & Hartford Railroad

Carroll, J. This is an action of contract to recover the value of a case of woollens shipped from Providence, Rhode Island, to the plaintiffs at Boston, over the defendant’s railroad. The answer was a general denial. The defendant agreed that it received the merchandise and carried it to its Boston freight terminal. It was also agreed that the plaintiffs employed one Joseph B. Smith, a master teamster, to receive and cart all freight consigned to them at the Boston freight yards, that Smith carried a charge account with the defendant and that the defendant was duly authorized by the plaintiffs to deliver to said Smith or any of his teamsters all merchandise consigned to them and arriving over the defendant’s line. The plaintiffs testified that the merchandise, was not delivered to them by Smith. Timothy Donohue, a witness for the defendant, testified that on July 8,1916, he was employed as a delivery clerk for the defendant at its freight house in Boston; that on that day he delivered the box of woollens to a teamster who presented the original delivery check and signed the name on the delivery check, “ Mitchell ” or a name that looked like " Mitchell,” and loaded the goods on a wagon on which was the name J. B. Smith; and that he (Donahue) wrote the name J. B. Smith on the delivery check, a photographic copy of which check was in evidence. Smith testified that he never received the case of woollens, that he never had in his employ a man by the name of Mitchell, and that none of his employees, so far as he knew, ever received the merchandise. The plaintiffs made several requests for rulings that the burden [467] of proof was on the defendant to show that it delivered the goods in question to the plaintiffs or their agents. After the jury had retired, it returned with this inquiry: "Has the plaintiff got to prove that the box was not delivered to Smith? ” to which the judge answered, “ The burden is upon the shoulders of the plaintiff to prove by a fair preponderance of the reliable testimony in the case that the box was not delivered to Smith. The burden is on the plaintiff, as I told you before, not to prove beyond a reasonable doubt, but the weight of the evidence, of the reliable evidence must be in his favor that the box was not delivered to Smith.” To this instruction the plaintiffs excepted. The jury found for the defendant. The plaintiffs’ cause of action, as set out in their declaration, was the failure of the defendant to carry safely and deliver to them the merchandise in question. The allegation that the defendant failed to deliver it to them was an essential part of their case and the burden of proving the non-delivery of the freight rested upon the plaintiffs. Morley v. Eastern Express Co. 116 Mass. 97. See Willett v. Rich, 142 Mass. 356, 360; Carroll v. Boston Elevated Railway, 200 Mass. 527, 536; Wylie v. Marinofski, 201 Mass. 583. The only question in the case was whether the plaintiffs received the freight. The defendant did not set up an affirmative defence, the burden of proving which would be upon it. The defendant offered evidence merely denying the claim of the plaintiffs and tending to show that the freight was in fact delivered to an authorized agent of the plaintiffs, and the fact that some evidence was offered by the plaintiffs that the goods were not delivered to them or their authorized agent did not place the burden on the defendant of showing that the merchandise was delivered. The burden of proving their case remained throughout with the plaintiffs and did not at any time shift to the defendant. Powers v. Russell, 13 Pick. 69, 76. Central Bridge Corp. v. Butler, 2 Gray, 130, 131. Hughes v. Williams, 229 Mass. 467, 470, 471. The exception taken to the admission of the testimony of the witness Rice was not argued and we consider it as waived. Exceptions overruled.