Baltimore & Ohio Railroad v. Schumacher ex rel. Myers

Stewart, J., delivered the opinion of the court. The appellant, in the first exception, complains of the action [175] of the court below, in granting the appellee’s fifth prayer, and in the second exception, in rejecting its third, fourth, sixth and seventh prayers. The fifth prayer of the appellee, although somewhat peculiar in its structure, did not require the jury to find what was thfe opinion of the court, as was contended by the appellants’ counsel, but upon the theory that the judgment of the court, as to the law, was as stated therein, upon the assumption that the appellant had ceased to be liable as a common carrier, and had become responsible for the proper custody of the oil as warehouseman and forwarder, — substantially asked the instruction to the jury, that the appellant, under such circumstances, in its character as warehouseman and forwarder, was bound for ^ordinary care and diligence over the oil in question, such> as a prudent man would exercise over his own property of like nature; and that such care should be in proportion to the loss likely to be sustained, by want of such care. We see no objection to the standard of diligence prescribed therein. Such care was incumbent on the appellant, as the character of the property entrusted to it required, and such as was properly adapted to its due protection and preservation. “ What constitutes ordinary diligence may also be materially affected by the nature, the bulk, and the value of the articles. A man would not be expected to take the same care of a bag of oats as of a bag of gold; of a bale of cotton, as of a box of diamonds. The value, especially, is an important ingredient to be taken into consideration upon every question of negligence. The degree of care which a man may reasonably be required to take of any thing, must essentially depend upon the quality and value of the thing. The bailee ought to proportion his care to the injury or loss which is likely to be sustained by any improvidence on his part.” Story on Bailments, sec. 15; Redfield on Railways, 253, 282, 435, 436; Pierce on Railroads, 448. Objection was also urged against that portion of the prayer, instructing the jury that if they believed from the evidence, “ that the defendant did not protect the oil in question from the action of the sun, and use other means in the mode usually adopted,” as an improper assumption on the part of the [176] court, as to a matter of fact exclusively within the province of the jury. If there were any force in this objection, special exception ought to have been taken thereto, under the Act of 1861-2, ch. 154, before we could overrule the action of the court below on that account — we discover, however, no validity in this objection. The court does not instruct the jury that the “ action of the sun ” would injure the oil, or that it required protection therefrom, but the purport of it was, that if the jury found the oil did require protection from the action of *the sun, and the appellant was guilty of neglect in taking proper care of it in this particular, and use of other means for its preservation, such conduct made it liable for the consequential damage. In the refusal of the appellant’s third, fourth, sixth and seventh prayers, in the second exception, we see no error. The court below properly refused the appellant’s third prayer, amongst other reasons, because it erroneously assumed that •there was evidence legally sufficient to go to the jury, to show that it was customary to leave oil, as an offensive article, to be stored with other goods exposed in the-open air. Besides, the prayer was objectionable for the further assumption on the part of the appellant, that there was no evidence offered to prove that the appellant was aware of the character of the oil, when there was testimony on that subject to bring to the knowledge of the appellant that it was refined oil. The responsibility of the proper custody and storage of the oil was on the appellant, and there was no specification in the contract to discharge it from the duty of ordinary care; if it were competent upon general principles, by any such special provision, to have relieved itself from such responsibility. 2 Redfield on Railways, 247, 251, 253; Pierce on R. R. 435, 448, 467; Story on Bailments, sec. 538; Bank v. Champlain Transp. Co. 23 Vt. 211; Thomas v. R. R. Co. 10 Met. 477; Richards v. R. R. Co. 20 Ill. 404. “ The general view of the American courts is, that in the absence of special contract, the rule laid down in the earlier English cases, that the carrier is only liable for the extent of his own route, and for the safe storage and delivery to the next carrier, is the more just and reasonable one.” Redfield on Railways, 282. [177] The appellant’s fourth prayer was properly rejected. It is substantially embraced in its second prayer which was granted, except that portion qualifying 'the duty of the appellant — to take care of the oil, simply as crude oil — whereas according to *the evidence, the oil in question was not crude as the prayer assumed, but refined oil; and there was evidence from which notice of -this character of the oil was brought to the attention of the appellant. The sixth prayer, in effect, asked the court to instruct the jury that the plaintiff was merely entitled to nominal damages, no matter what was the extent of the proof in other respects, if they believed the appellee had the opportunity, whilst the oil was in the custody of the appellant at Baltimore, to have had the barrels of oil gauged before shipment, so as by comparing such ascertainment of the quantity of oil with the amount delivered to the appellants at Ben wood, where the company had first received it, the loss whilst it remained in its custody at Baltimore, might be more definitely ascertained; and that the appellee failing to possess himself of such information could recover but nominal damages. We see no justice in such a requirement as that. The appellee was obliged to furnish satisfactory proof of the loss in the oil, according to the instruction of the court previously given in granting the appellant’s fifth prayer. According to that instruction the onus was on the appellee to establish the loss by competent and admissible evidence; but he was not required to prove it to a mathematical certainty, but simply to such degree as would be sufficient to satisfy the minds of the jury of the fact. The seventh prayer of the appellant devolved a higher degree of proof upon the appellee, than could be legally required of him. Whether the negligence complained of was gross or slight, and without going into the inquiry, about which the authorities are conflicting and somewhat unsettled as to the different degrees of negligence, and metaphysical shades of distinction between very slight and fraudulently gross neglect, we think, if the appellee succeeded in showing to the jury that the loss of the oil was occasioned by the neglect or the want of ordinary care on the part of the appellant, as warehouseman [179] and forwarder, from all the evidence *in the case, to be considered and determined by them, the appellant was answerable for any damage sustained by the appellee by reason thereof. The effect of the instructions under all the prayers, reduced the responsibility of the appellant from that of a common carrier to one of an ordinary bailee — certainly a liberal relaxation of the common law rule of liability; and merely requiring of the appellant ordinary care as warehouseman and forwarder. We do not perceive that the appellant has any valid ground of complaint; and we sustain the rulings of the court below on the prayers brought up on the appeal for our revision. Judgment affirmed.