Isdaner v. Philadelphia & Reading Railway Co. , 1913 Pa. Super. LEXIS 97 ( 1913 )

Opinion by

Henderson, J.,

The plaintiff’s action being for the value of goods lost in transit it became necessary to show that the missing merchandise was in the package containing it at the time it left the custody of Eiseman & Company, by whom it was shipped. The evidence offered on behalf of the plaintiffs was sufficient to show that the missing merchandise was packed with the balance of the shipment in a box secured by iron bands at the ends, and that it was delivered in this condition to a carter employed by the shipper whose duty it was to carry the package to the dock of the Central Railroad of New Jersey, in New York, where it was accepted, but there is an entire lack of evidence that the box as delivered to the carter was delivered intact to the railroad company. .The receipt for the same “in apparent good order except as noted, contents and condition of contents of packages unknown” is an admission as to conditions visible and open to inspection, but does not bind the carrier to liability for the contents in the absence of evidence that the package is not what it appears or is represented to be. The admission applies to external conditions but not to that which is not open to inspection. The responsibility of the carrier in a case like this is only to deliver the goods as he receives them. The merchandise was not committed to the carter as the initial carrier in a course of transportation to be completed through the agency of other carriers. He was employed to remove the goods from the store to the freight house of the railroad company which was to take them from New York. He merely ■ obeyed the instructions of his employer in taking the box to the place where it was to be received by the carrier to whom the shipper committed it for transportation to its destination. His connection with the business was a distinct transaction not intended by the shipper or by him to be an acceptance of the goods on an undertaking that they were to be carried to Philadelphia. He was not the agent of the-railroad company but was acting on an order from Eiseman & Company and he was the agent of that company for the purposes of this transportation. This is clearly shown by the bill of lading which was prepared by a clerk of the shipper and presented to the railroad company to be signed and returned. It shows that Eiseman & Company dealt directly with the railroad and billed the merchandise through it to the consignees. No presumption arises under the circumstances of the case that the package was delivered at the wharf in the same condition in which it was when received by the drayman, and the burden of proof was on the plaintiffs to show that the lost silk was actually delivered to the railroad company. If the death of the drayman prevented the plaintiffs from accounting for the box in its transfer from the store to the wharf it is a hardship but a condition not unusual in the experience, of litigants. The death of a material witness does not relieve the suitor from supplying by competent evidence the testimony necessary to make out a case. Our attention has not been directed to any authority which convinces us that there is a presumption that the box containing the silk had not been tampered with between the time it was packed and the time when the railroad company accepted it, and without such presumption the case is destitute of the evidence which would support a verdict for the plaintiffs.

The judgment is affirmed.