Brintnall v. Saratoga & Whitehall Railroad

Poland, J. The first question made by the defendants’ counsel is, that the proof in the court below did not support the declaration, that is, that it did not prove the contract or undertaking of the defendants with the plaintiff as alleged in either count. It was said in the argument that where the declaration contained several counts setting out the plaintiff’s cause of action in different ways, to meet any differences that might arise on the proof, or different views of the legal effect of the language of a contract, it would be the duty of the court to direct the attention of' the jury, and confine the recovery, to such counts as the proof sustained. This is undoubtedly true when any such point is made, and when the attention of the court is called to the matter, but when — 673 — no question is raised to the court, and they are not called upon to distinguish between the different counts and the special applicability of the evidence to each, and no objection is made to the admissibility of the evidence upon particular counts, it is not usual for the court to voluntarily assume any such duty, and no exception can be taken because they do not. The question whether the proof strictly supported any one of the counts in the declaration, we do not regard as properly aris* ing upon these exceptions, for no such question appears to have been made in the court below. It is a general rule that the court will not revise any questions except such as appear to have been raised in the county court, and this rule applies with peculiar propriety to questions of variance which, if raised in the county court, can generally be removed either by further proof or by amendment. To allow a party to raise such a question for the first time in the supreme court, would operate usually with great injustice. It has been repeatedly decided by this court, that it cannot be allowed, unless the variance appears of record, and is of such a character that the judgment would not protect the parties in reference to the matter actually litigated ; Peck v. Thompson et al., 15 Vt. 637 ; Hard v. Brown, 18 Vt. 87. It appears by the declaration, and also "from the exceptions, that the plaintiff claimed that the receipt given by the defendants for the box of goods, amounted to an undertaking by them to transport it to Boston, and that they would be liable for its loss, though the loss occurred beyond the termination of the defendants’ road at Castleton, upon one of the other roads in the line between Castleton and Boston. The defendants claimed that they were only liable for its safe delivery at the end of their own road, at Castleton. The county court, upon this point, held with the defendants, in conformity with what we understand to be the general current of American decisions. It is said, however, that the court erred in assuming, either with or without proof, that the defendants’ undertaking and obligation was to deliver over the box to the Rutland and "Washington road, the next road in the line to Boston; that no such thing could be inferred from the receipt of the defendants, and that no — 674 — such thing could legally be proved aside from the receipt. It is not in terms stated in the receipt where, or to whom, the box was to be delivered, but we think it is apparent from the language of the receipt that the box was understood to be destined for Boston, and to be forwarded there by the line of railroad of which the defendants’ road formed a part. It is said that the marks upon the box are not to be understood as a direction of it, but as merely giving the residence of the owner, like a name and residence marked upon a trunk, which ordinarily furnish no indication of its destination. But such marks upon a box of merchandise forwarded by railroad or steam» boat, usually, if not universally, indicate its destination in that transit, while the same marks permanently placed upon a trunk, indicate merely the residence of the owner, and remain the same, whether going from or toward his place of residence. Such being the known and understood destination of this box of goods, although the defendants’ receipt says nothing as to where or to whom they were to deliver it, the defendants’ duty would be to deliver it to the carriers on the connecting road, to be forwarded to its ultimate destination, because this is the usual and ordinary course of business in such cases. If any question had arisen as to this in the county court, evidence would have been admissible to show the ordinary course of business, but it does not appear that any such question was made, or any necessity for such proof, for it appears to have been understood by all parties that the box was received by the defendants to be sent forward to Boston, by railroad, and that they were to deliver it over to the Rutland and Washington road at Castleton, the point of connection. The county court were then abundantly justified in charging the jury as they did, as to the defendants’ duty to deliver the box over to the next carrier in the line, and the exceptions do not fairly show any exception to the charge in that respect. The ouly point fairly raised by the exceptions to the charge, which is relied upon here, is in reference to the proof incumbent on the plaintiff to make, to establish negligence, prima facie, against the defendants, so as to throw upon them the burden of showing the box out of their hands into those of the next carrier. The duty of the defendants was to safely transport the box to — 675 — ■Castleton, tlie end of their road, and then deliver it to the next carrier. The negligence alleged in the declaration, the breach of duty complained of, is, that they did not do this; and, of course, in order to establish a right of recovery against the defendants, there must be some proof offered to prove such negligence. ■ It is an affirmative allegation by the plaintiff, and the burden is upon him, though it involves the proof of a negative. It is not enough for the plaintiff to show the box into the hands of the defendants, and throw the burden upon them to prove that they delivered it to the plaintiff, or at its proper destination, under their contract of carriage. But in such cases a plaintiff is only bound to give such proof of the loss as the nature of the case admits of, and fairly is in his power to bring. The fact that he is thus really called upon to prove a negative is not to be lost sight of, nor that ordinarily after the delivery of goods to a carrier, and especially to a railway company, the means of proving what has been done with them, or what has become of them, are wholly within their own power and knowledge, and out of that of the plaintiff. The plaintiff can, and ought always to be required to show, that he has not received his property; that it has been lost. The county court required this to be done by the plaintiff, and held that if this was shown, and that the goods never reached Boston, their ultimate destination, then the burden was on the defendants to show the box out of their hands. We have had some hesitation and doubt upon this point, but upon more consideration we are satisfied, under the circumstances, that the instruction was correct. The argument is, that showing the box did not arrive at Boston, the end of the route, but was lost, does not prove or tend to prove the defendants did not deliver it to the next carrier, because it might have been lost between Castleton and Boston. It must be admitted that it is very inconclusive proof of the fact, but still we think it has some tendency to establish it. The box is proved into the hands of the defendants ; there is no evidence that anybody else ever had it, or that it was ever in the possession of any other carrier in the line. The usual and ordinary course of things, what is always expected, and what generally proves true is, that goods forwarded upon such a line arrive at their destina-. — 676 — tion, and therefore the fact that goods do not arrive at one end of the line, is some evidence they were not sent from the other. It may he said that this reasoning would include the defendants’ road as well as the rest of the carriers in the line, but the defendants are proved to have had the box, while there is no proof that either of the others ever did. But we place it upon the ground mainly that this was really all the proof the nature of the case permitted to the plaintiff, and that proof of a delivery by the defendants to the next road was a matter that was peculiarly within the power of the defendants, and not at all in the power of the plaintiff, unless the defendants and the connecting roads preserved evidence of the transfers of all freight from one road to the other. It is well understood that in the carriage of freight over a long line, made up of several different roads, it is not usually exchanged from the cars of one road to those of another, but that each road furnish their proportion of cars, and they are run over the whole line. In such cases, unless the respective roads keep some record or evidence of the freight that in fact goes over their roads in this way, it would be next to impossible for the forwarder, in case of loss, to ever show where it occurred. If the respective roads do keep such evidence, then they have always the power to show freight out of their hands into that of the next in the line. In either event it seems just and reasonable that the road receiving the freight, or any other into whose hands it is proved, in case an ultimate loss is shown by the owner, should be required to show it out of their hands. These views seem to be supported by the case of Day et al. v. Ridley et al., 16 Vt. 48. In that case the defendants, who were carriers, received of the plaintiffs a quantity of oil meal, to be carried by their boat from Burlington to Troy. The boat was capsized on the lake in a Storm, A part of the casks of meal were landed at Essex, N. Y., and, as the case states, there was no evidence given what became of them. The defendants’ counsel claimed that the burden of proof was on the plaintiffs to show that the meal was not delivered at Troy, its place of destination, and that for want of such proof the plaintiffs could not recover for this part of the goods. But the supreme court held that this was sufficient evidence to throw, the burden upon the defendants. — 677 — Williams, Ch. J., who delivered the opinion, says, “it was necessary for the plaintiffs to give some evidence of loss, and thus far the burden of proof was on them. The burden of proof may be turned on the defendants, however, by slight proof.” The only remaining point arising upon the exceptions, is the correctness of the admission of Morrison’s deposition. The deposition purports on its face to be a deposition taken on behalf of the plaintiff, and was offered and admitted as such. In order to make it admissible, therefore, it must have been taken in pursuance of the provisions of our statute in relation to the taking of depositions. The act of 1854 requires that all depositions shall be taken with notice, and expressly provides that none shall be read in evidence unless notice be given as provided by that act. The notice required is either a personal notice to the adverse party by the magistrate taking the deposition, or by a citation served on the adverse party, or his attorney, in case the party lives out of the State. We think this deposition was inadmissible for two reasons. 1. That Rond was not the attorney of the defendants in any such sense as authorizes a notice to be given to him. It must mean the attorney in the cause, and it is not claimed that Rond was, and if he was employed by the defendants to take a deposition, which is all that appears here, that was not enough. 2. We think the fair inference from the deposition is, that the notice to Rond was a verbal notice from the magistrate merely. It is clear from the statute that notice to an attorney can only be given by a citation, duly served, and that notice can only be given verbally to the party himself. We are unable to see how the legal question is varied by the particular circumstances under which this deposition was taken. The magistrate could not make a mere duplicate of the deposition evidence for the other party, except by taking it as the statute requires. We regret this result, as under the circumstances it would seem the defendants ought not to be allowed to object to the plaintiff using a copy of their own deposition, but we feel that it is unavoidable under the strict rules that have always been held upon the subject. The judgment of the county court is reversed, and the case remanded for a new trial.