Dimmick v. Milwaukee & St. Paul Railway Co.

By the Court, Cole, J. Whether the bailment was gratuitous or not, was a question which the court fairly submitted to the jury upon the evidence. Eor the court says: “ If you find from the evidence that the defendant was in possession of the goods, keeping them for hire, that is, entitled to pay from the plaintiffs for storing them, then it is a lucrative contract, not a gratuitous undertaking, on the part of the defendant,and the defendant is held to ordinary care of the goods, and is answerable for ordinary neglect.” There was testimony which tended to show that the company was accustomed to charge storage upon goods which were not removed from the freight depot within two days after they were unloaded from its cars. [475] Snob were tbe conditions contained in the printed regulations of the company, which, it appears,' were hnng up for inspection in the office of the station agent at Beaver Bam, and under which the agent said he was working when the goods in controversy were transported over the road and deposited in the depot of the company. These printed regulations had been offered in evidence, and were before the jury, as well as the testimony of the station agent, Wilcox, who stated that he charged the plaintiffs storage on their goods, and put the charge upon their bill. Erom this testimony the jury might well conclude that the goods were not left in the depot or warehouse for the special use and accommodation of the owners, but that the company was to derive a benefit from the storage, and was therefore chargeable with the obligation and duty of a bailee for hire. At all events, the whole subject was submitted to the consideration of the jury, to say whether the company, in keeping the goods in its warehouse for several days after they had been unloaded from its cars, was performing a gratuitous service, or whether it was to receive compensation for the storage. We see no error in this of which the company can complain. Upon the question of negligence, the court told the jury, in substance, that if they found that the company was keeping the goods for hire, then it was bound to exercise ordinary care and diligence in respect to them, or that it should exercise that care which men of common prudence generally bestow upon their own property similarly situated, and was only liable in case it failed to perform this duty. This, we suppose, was stating correctly the principles of law applicable to the question of negligence. The goods in this case, were stolen from boxes while they were in the warehouse of the company. The warehouse was a large wooden building, standing upon blocks three or four feet from the ground. There was no planking around these blocks, except in front, and' persons, by stooping some, could go under and walk about beneath the floor. It [476] appears that there were two short plank loose in the floor, and had been for a long time, to the knowledge of the agents of the company, through which the thief probably entered the building. And the respondents claimed that the company was guilty of a want of ordinary care and diligence in permitting the floor to remain in this condition with no night watchman about the building. Hence the court told the jury that the company would not be liable for the loss if its agents had exercised that degree of care and diligence in keeping them which a man of ordinary prudence would use in respect to his own property of a like value. They were to determine, taking all the circumstances together, whether there was any proof of negligence or want of proper care on the part of the company in leaving the plank of the floor loose, through or by means of which thieves and burglars might enter the warehouse and steal merchandize there deposited. On the trial, a witness was asked whether, prior to the loss of these goods, a number of thefts and robberies had not been committed in the city of Beaver Dam and vicinity. These questions were all objected to, and it is now contended that the court erred in permitting them to be answered. The object of this_ testimony undoubtedly was, to show that, in consequence of these thefts and robberies, more than common or ordinary care and diligence should have been exercised in keeping goods in the warehouse. We agree fully with the counsel for the appellant in the remark that the testimony did not show, or tend to show, that robbers were known to frequent Beaver Dam more than any other neighborhood or locality in the state. At most the testimony bn this point was impertinent, and it was in effect entirely thrown out of consideration by the court when it came to charge the jury. The jury was not told that it was the duty of the company to exercise any greater vigilance or care in consequence of these robberies having been committed there. On the contrary, the jury were clearly instructed that the company was excused if it only exercised that ordinary [477] care wbicb men of common prudence would exercise about their property similarly circumstanced. Under these instructions, it was not possible for the company to be prejudiced by such testimony. If the company was not called upon to exercise any higher degree of diligence in consequence of these robberies, how could it be injuriously affected by the testimony in respect to them ? Manifestly it could not be. We think the question of negligence was fairly submitted to the jury under proper instructions. The judgment of the circuit court is therefore affirmed.