Empire Transportation Co. v. Wamsutta Oil Refining & Mining Co. ( 1870 )

The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

As a common carrier cannot, by a special notice or limitation in the contract or bill of lading, protect himself from liability for the negligence of himself or his servants, Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315, the only question in this cause was, whether the defendants had been guilty of such negligence. The error assigned is, that the court below took that question from the jury, by affirming the plaintiff’s second point, by which they were instructed, that if they were satisfied that certain facts were proved, the plaintiffs were entitled to recover. The rule upon this subject was very clearly laid down in McCully v. Clarke, 4 Wright 399, in which it was said: There are some cases in which a court can determine that omissions constitute negligence. There are those in which the precise measure of duty is determinate, the same under all circumistances. When a duty is defined, a failure to perform it, is, of ’¡course, negligence.” Other cases fully corroborate this doctrine: Powell v. Pennsylvania Railroad Co., 8 Casey 414; Pennsylvania Railroad Co. v. Ozier, 11 Id. 60; Pittsburg & Connellsville Railroad Co. v. McClurg, 6 P. F. Smith 294; Glassey v. Hestonville Passenger Railway Co., 7 Id. 172.

The duty of a common carrier is, to provide a vehicle in all' respects adapted to the purposes of carriage, and so constructed as to be able to encounter the ordinary risks of transportation: Story on Bailments, § 509. It must be perfect in all its parts, in default of which, he becomes responsible for any loss that occurs in consequence of any defect, or to which it may have contributed: Hart v. Allen, 2 Watts 114; New Jersey Railroad Co. v. Kennard, 9 Harris 204. When merchandise, of whatever character, is carried on the same railroad train with cars loaded with a combustible substance, easily ignited by sparks from the locomotive engine — it is the special duty of the carrier to take every available precaution against the communication and spreading of the fire, if it should occur. An evident and simple measure is, to have the coupling of the ears in such perfect order that any one or more of them can be easily detached from the others, in time to be saved from the consequences. If the fact be that the coupling was defective, unless such defect was the result of an inevitable accident, and, in consequence of it, the car containing the plaintiff’s merchandise could not be detached in time to be saved, the negligence and liability of the carrier, are inferences of law, from the facts.

But it is said that the onus in this case was on the plaintiffs below, to show that the defect of the coupling arose from the negligence or want of care of the defendants. We think not. When the carriage is proved to have been defective at the time of the injury, and that the defect contributed to the loss, the onus is then necessarily shifted to the carrier. He must rebut it by evidence that the defect arose, not from the insufficiency of the vehicle, into which the goods were loaded, but from some subsequent accident, beyond his control. This puts the burthen where it ought most properly to rest. The carrier ought to be able to show, with ease, by his servants, that the vehicle was inspected before the commencement of the trip, and everything found to be in good order. It would be very difficult for the plaintiffs to prove the contrary — that it had not been examined, or that it was in bad order when it started. On the trial of this case, in the court) below, there was no evidence to show when, or how, the links of the coupling of the cars became jammed, so that they could not be separated in time. It was surmised by one of the witnesses, that it must have got into that shape by going around a curve. Even admitting this to be so, the important question remains unanswered, and which it was incumbent on the carriers to answer, when did this occur ? Had it been shown to have happened during the course of the same trip in which the fire took place, and that it was not known to, or discovered by the carriers, or their servants, in time to be remedied, then, indeed, there might have been a question of negligence for the jury. But without any evidence as to this point, there was nothing for them but that which was submitted, whether the coupling of the car was defective, and that defect contributed to produce the loss.

Judgment affirmed.