Boies v. Hartford & New Haven Railroad

Park, J. The defendants complain of the following ruling of the court below, “ that inasmuch as the missing goods were in fact deposited by them in their warehouse, the defendants, to deliver themselves from responsibility for the goods, were bound to prove either a delivery to the plaintiff or his agent or servant, or that they had exercised ordinary .care in keeping them after they received them; and that under the circumstances the burden was not on the plaintiff to show the manner and particulars of the defendants’ negligence by moans of which the loss occurred.” The defendants concede their liability if they failed to exercise reasonable care over the property while it remained in their warehouse awaiting delivery to the plaintiff and the property was lost through the want of such care; but they complain of the rule that- governed the court in arriving at the conclusion that such care was not exercised. [277] We do not propose to lay down any general rule governing cases of this description, but confine ourselves particularly to the case we have in hand. The authorities are not uniform in respect to depositaries for hire where goods are lost, whether the onus prohandi of negligence is on the plaintiff or of exculpation on the defendant. In England the burden is thrown upon the plaintiff, but in some of the American cases the defendant is required to exonerate himself from negligence. Lichtenhein v. The Boston & Providence R. R. Co., 11 Cush., 70; Brown v. Waterman, 10 Cush., 117. It appears by the record in this case that the plaintiff pi’oved to the satisfaction of the coui-t that the defendants received at their warehouse eighteen bales of cottoxi belonging to him axxd failed to deliver to him subsequently more than sixteen of the eighteen bales. The defendants did not show that the missing goods had been lost, neither did they give any explanatioxr of what had become of them; nor that they exercised reasonable care to prevent their loss. Under such circumstances we think the court did right in holding that “ the burden was not on the plaintiff to show the manner and particulars of the defendaxits’ negligexice by means of which the loss occurred.” The court xxo doxxbt was satisfied from all the facts axid circumstances of the case that it was difficult for the plaintiff to prove particular acts of negligence, but if the defendants exercised reasonable care over the property to prevent its loss, they could easily show the fact, and having failed to prove it the court x-egarded the circumstance as axr implied admissioxi that they did not exercise such care; which, considered in connection with the other facts of the case, satisfied the court that such care was not exercised. We think the dofexxdaixts were bound to account for the missixxg bales, or show themselves not chargeable with negligence, under the circumstances proved by the plaintiff; and having failed so to do, judgment very properly was rexxdered agaixist them. Lichtenhein v. Boston & Providence R. R. Co., and Brown v. Waterman, supra; 2 Kent’s Com., (4th ed.) 587; Logan v. Mathews, 6 Penn. S. R., 417. The missing [278] goods were bulky, and cotdd not liare been removed without difficulty, and consequently not without the knowledge of the defendants. The very fact that they were missing, was strong evidence of negligence under the circumstances. There is no error in the judgment complained of. In this opinion the other judges concurred.