Hall v. Cheney , 36 N.H. 26 ( 1857 )

Peeley, C. J.

The saw was damaged somewhere in the course of transportation between Northumberland and Fisher-ville ; but there was no direct evidence to show whether before or after it was delivered to the defendants. There was, however, much evidence as to the manner in which it was carried to Bar-net, where the defendants received it, the state of the roads, and other circumstances. Whether the saw was injured before or after it came to the possession of the defendants, was a fact to be inferred from the circumstances as they appeared on trial, and a question peculiarly proper for the jury to determine. In a case like this, “ where presumptions are to be raised and inferences drawn, and evidence is to be- weighed, the verdict will not be set aside, although the court might have decided the other way upon the facts.” Wendell v. Safford, 12 N. H. 171, 178.

The eourt are not able to see in the case any such decided preponderance in the weight of evidence as leads them to the conclusion that the jury “ misunderstood or disregarded the instructions of the court, or neglected to consider the facts, and overlooked prominent and essential points in the evidence.” The verdict cannot he set aside on this ground.

The familiar rule of the eommon law charges a common carrier with all losses, except such as are caused by the act of God or the public enemy, and this rule has undoubtedly been adopted as the law of this State. In Moses v. Norris, 4 N. H. 304, 306, Richardson, C. J., remarks that the common carrier is answerable for all losses happening otherwise than by “ inevitable accident.” The decision of that ease did not require the court to consider the particular limits of the exceptions to a common carrier’s liability, and none of the authorities there cited, except Jones on Bailments, use the term, “inevitable accident,” and we have no idea that the court, in the ease of Moses v. Norris, intended, by using the term, “ inevitable accident,” in that general way, to introduce any modification of the ancient and well established rule of the common law.

In the present case it was quite unnecessary that the jury should be particularly instructed as to the exact limits of a carrier’s liability, because, if the saw was injured while in charge of the defendants, there was no evidence tending to show any fact which would in law discharge them, and the burden of proof was on them to show that the damage happened from some cause that would furnish them with a legal excuse. Angelí on Carriers, secs. 202 and 472.

The phrase, “ inevitable accident,” used by the court in their instructions to the jury, was not probably intended as any thing more than a general statement of the common carrier’s legal liability, and the case required no detailed explanations on that point. At any rate, the defendants have no reason to complain of the rule laid down; it was, at least, sufficiently favorable to them, for the term, “ inevitable accident,” has been criticised, not because it would change the law to the disadvantage of the carrier, but on the ground that, if admitted, it would relax the stringent rule of the common law, and embrace cases of accident which must be regarded as inevitable, though not happening from causes that fall under the legal definition of the act of God or of the public enemy ; such as the irresistible force of robbers, or such as fires, commencing elsewhere and spreading to places in which the goods were kept by the carrier. Angell on Carriers, secs. 154 and 156; Forward v. Pittard, 1 T. R. 27, 33.

The court instructed the jury that the defendants were bound to the highest degree of care and diligence, and were liable for every injury to the saw, except such as human care and foresight could not prevent. The objections to these instructions appear to go on a mistake of the grounds upon which the legal liability of common carriers rests. They are not charged because they are shown to have been actually negligent, but because the law, upon reasons of public policy, except in certain specified cases, holds them to the liability of insurers. Even inevitable accidents, unless they can be classed under the legal head of acts of God or the public enemy, will not excuse them. Considered in the abstract, the instructions of the court were, perhaps, not strictly accurate, for they might seem to imply that there was a degree of care and diligence, which would, as a general rule, and in all cases, discharge the carrier. But the error, if there was any, was on the side of the defendants, and no ground of exception for them.

Beside, there was nothing in the ease to make a particular explanation of the limits and qualifications of a common carrier’s liability necessary or material.] If the saw was injured while in the defendants’ charge, they were legally liable, inasmuch as in that case the burden of proof was on them to show that the injury happened from some cause that would furnish them with a defence, and no evidence was given tending to prove any such cause.

The motion in arrest of judgment is not insisted on, and cannot prevail. The declaration does not allege that a compensation was paid, or agreed to be paid, for carrying the saw. But the action being in case, this was not necessary, as was held in Coggs v. Barnard.

Judgment on the verdict.