Curell v. Johnson

Carleton,J., delivered the opinion of the court. We have carefully examined the testimony coming up with the record on this case, and are not altogether satisfied, that the damage complained of, happened to the goods on their transit to New-Orleans, through the fault and neglect of the defendant. The judge appears to base his judgment mainly upon the testimony of two witnesses, whose mere opinions are opposed by the facts fully attested and not controverted; that the goods in question were stored between the fore and main hatches, upon crates of empty porter bottles, and surrounded ot-her merchandize, which arrived in good order. It appears to us, the defendant has gone far to prove affirmatively, that the fault was not his own; and although he acknowledged by the bill of lading, that he received the merchandize in good condition, yet we do not understand his acknowledgment to extend beyond the external appearances of the boxes in which they were packed. Had a jury, acquainted with such matters, passed upon the controversy between the parties, it might not have been our duty to disturb their verdict. But as the subject presents itself to our mind, it does appear to us, that the plaintiff has not. satisfactorily made out his case, and that the judgment of. the court is erroneous. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be avoided and reversed, and that there be judgment for the defendant, as ’in ■ case -of non-suit, with costs in both courts.