Union Stone Co. v. Wilmington Transfer Co.

Boyce, J., charging the jury: Gentlemen of the jury:—This is an action by Union Stone Company, the plaintiff, against Wilmington Transfer Company, the defendant, to recover damages alleged to have been sustained by the plaintiff on account of the failure of the defendant to take care of one stone planer and safely carry and convey the same from Commerce Street to Second and Church Streets in this city under the terms of an oral agreement between the parties, and also for injury and damage to a traveling crane used by the defendant in lifting and moving the planer. The plaintiff claims for its alleged damages the sum of four hundred and seventy-one dollars and seventy-six cents, with interest from December 12, 1911. It is conceded that the defendant engaged to remove the stone planer for the price or sum of thirty dollars, and that the defendant in the removal of the same was to have the use of the traveling crane erected in the building from which the property was to be removed. The vice-president of the plaintiff company admits that he said to the superintendent of the defendant that the traveling crane had a capacity of ten tons; the latter, however, claims that he was assured that the crane had a capacity from twelve to fifteen tons. The bottom of the planer which was being lifted at the time of the accident was said to weigh from three to three and one-half tons. You have heard from the several witnesses how the tracks carrying the crane were laid and supported in the building and how they extended and were supported outside of the building at the easterly end thereof. You have had detailed to you the general condition of the building, the openings or means of access, its floor, and its immediate surroundings, as well as the location of the tracks above the floor carrying the crane, but we cannot charge you with respect to matters of fact. Under the agreement between the parties, it is conceded that [63] the defendant began to remove the stone planer, and having removed the table of the planer, delivered it to the plaintiff at the location agreed upon; that it then undertook to carry the bed of the planer by means of the crane along the tracks to the east end of the building where the truck on which it was intended to load the planer had been placed, and when, a very few feet outside of the building, the planer was being lifted to or placed on the truck, the tracks carrying the crane spread, and it dropped to the ground, damaging both planer and crane. It is for this alleged damage that this action is brought. The defendant has requested the court to direct you to return a verdict in its favor. The court is constrained to disregard this request, believing it to be our duty to submit the case to you for your determination from the evidence before you, considered in connection with the law which we deem applicable to the facts of the case. When, under the contract between the parties, the defendant came into the possession of the property for the purpose of removing the stone planer, a bailment was established, which existed while the property was in the custody and control of the defendant. A bailment is defined to be a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. Story, Bailm. § 2. One who delivers personalty to another for the purpose of a bailment such as we have defined is called a bailor, and the person to whom such personalty is so delivered is a bailee. A bailor may maintain an action for damages where the subject-matter of the bailment has been misused by the bailee, or where a loss or injury to the property has occurred from the latter’s neglect. 5 Cyc. 213. Where goods or chattels come into the possession of another under a bailment, it becomes and is the duty of the bailee to exercise due and reasonable care with respect to such property under the terms of the bailment. [1, 2] The degree of care required to be exercised is such as is reasonably necessary to prevent loss or injury to the property. If loss or damage happens to the property as the result of [64] a failure to exercise due and reasonable care with respect thereto, that is from the want of that degree of care such as an ordinarily prudent man would have exercised under like circumstances, it constitutes a neglect of the duty imposed by the contract of bailment and renders the bailee liable for whatever loss or injury the bailor may have sustained by reason of such failure of duty. Ordinarily failure of duty will not be presumed. It must be proved by the plaintiff. But where property under a contract of bailment is damaged or injured while in the exclusive custody of a bailee, his servant or agent, it is incumbent upon the bailee to satisfy the jury that the injurywas not occasioned by the default or neglect of himself or his servant or agent. Pusey v. Webb, 2 Penn. 490, 47 Atl. 701. [3] If the removal of the planer and the use of the crane were under the exclusive control and management of the defendant, its servant, or agent, the defendant in the absence of any assumption of responsibility on the part of the plaintiff is liable for any loss or injury incident thereto; but if the plaintiff guaranteed the sufficiency of the crane including the tracks and its other equipment for the purpose of lifting and removing the planer from the building to and upon the truck of the defendant, and if this guaranty extended to the entire tracks both inside, and outside of the building then the plaintiff assumed the risk and the defendant is thereby relieved from liability. In other words, if the crane was guaranteed to lift and carry the planer both inside and outside the building, or if the defendant was induced by the plaintiff to believe and did believe that the crane would, in the exercise of reasonable care, prudence and caution, safely carry the planer outside as well as inside the building, and if under all the circumstances such care was exercised by the defendant, then the plaintiff cannot recover for damages to the crane or to the planer, and your verdict should be for the defendant. If, on the other hand, you are satisfied from the evidence that the plaintiff did not assume an;r responsibility for the crane outside of the building, or that the defendant in the exercise of reasonable care, prudence and caution under all the circumstances [65] knew or ought to have known that the crane could not safely be used outside of the building, then your verdict should be for the plaintiff. [4] If your verdict should be for the plaintiff the measure of damages is the difference between the value of the property before the injury to it and the value after the injury, not exceeding, however, the sum of four hundred and seventy-one dollars and seventy-six cents, with lawful interest thereon from the time of the injury to the property, to wit, the twelfth day of December, A. D. 1911. Verdict for plaintiff.