Burwell v. Raleigh & Gaston Railroad

MerrimoN, J. (after stating the facts). The defendant was not bound to transport the box containing the goods alleged to have been damaged, in a box car. It was, however, bound to keep the box dry, free from exposure and injury, while the same was in its care and custody. The Court, in effect, so instructed the jury. The plain import of that part of the instructions excepted to, was, that if the jury believed from the evidence, that the defendant, under the circumstances, in the way, and by the means pointed out, of which there was evidence, kept the goods dry and free from damage while the box containing the same was in its care and custody, then any presumption of negligence was rebutted. The counsel contended on the argument, that the instruction was not broad enough — that the injury might have been done otherwise than by water, and the jury might have so found, under proper instructions. This objection is not tenable, because it was not alleged or suggested that the goods were injured otherwise than by wetting them. The Court was not called upon to present the case to the jury, in an aspect not presented by the pleadings or the evidence. It seems to us too plain to admit of serious question, that the defendant had the right to offer any competent evidence on the trial, going to show that the property in question was not damaged while on its line of road, and in its care and custody. The receipt and manifest were evidence going to prove a prima facie [456] case of liability against it, but they were not conclusive. It was competent to disprove the case so made. The evidence that it did not rain on the box while in transit over the defendant’s line of road, obviously tended to prove that it did not get wet while in its custody, and the Court properly instructed the jury that they might consider that fact, in connection with the other evidence, and this was not an improper modification of the first special instruction asked for by the defendant. Dixon v. Railroad Company, 74 N. C., 538. Williams v. Railroad Company, 93 N. C., 42. So the judgment must be affirmed. No error. Affirmed.