National Line Steamship Co. v. Smart , 1884 Pa. LEXIS 310 ( 1884 )

Mr. Justice Trunkey

delivered tbe opinion of tbe court, November 10th, 1884.

The parties agree that compensation having been paid for extra weight, the goods were carried as passsengers’ baggage and properly placed on the pier of tbe Inman Line in New York, and that they were examined in the plaintiff’s presence by the officer of customs, after wliich, at the request of the plaintiff,the defendant promised to keep them until demanded. They differ as to some of the terms of the arrangement; one alleging that on the same day the defendants were to move the goods to the National Pier, and put them under lock and key, and that nothing was said about the risk; tbo other, that nothing was said about moving the goods, and that tbe permit to leave them was expressly at the plaintiff’s risk. The jury were instructed that if they found the facts as alleged by the defendant, the law in relation thereto was correctly stated by the defendant’s counsel.

Upon the facts as testified by tbe plaintiff, it is obvious that the defendants’ responsibility as common carrier ended with the arrangement for keeping the goods until called for by the plaintiff, and thenceforth the liability of the defendant was that of a bailee for hire. It was the same as if the passenger had not called for his baggage within a reasonable time. A passenger must be allowed a reasonable time after arrival of his baggage to call for and take it away, and during such time the carrier continues responsible according to the strict rule of law relating to common carriers. When the liability as carrier ceases he holds the baggage under a modified liability. His duty to exercise care over the property remaining in his hands grows out of the original contract, and be is therefore bound to exercise ordinary care in keeping and preserving it; the original contract, though modified in respect to the degree of liability assumed from a reasonable time after the arrival of the goods, being understood to contemplate a possible delay, and to cover the delivery: Edwards on Bailments, § 90; Hutchinson on Carriers, §§ 708, 712; Burnell v. New York Central R. Co., 45 N. Y. 184. Where the contract is to carry goods by sea from port to port, it is the duty of the consignee to receive the goods out of the ship or at the wharf. If they are not accepted by the consignee the carrier should put them in a place of safety; and when he has so done he is no longer liable on his contract of affreightment: Richardsons. Goddard, 23 Plow. 28. So, a passenger should call as soon as practicable for his baggage, but if he does not, the carrier is bound to care for it or send it to a fit storehouse.

The arrangement between the plaintiff and defendant must be considered in connection with their original contract. There was no actual delivery of the property to the plaintiff; on the contrary, the defendant promised to keep it at the instant when delivery might have been tendered. The learned judge of the Common Pleas rightly ruled that there was no such delivery as relieved the defendant from the care of the property, and that from the time of the promise the property remained in the defendant’s keeping under a modified liability, as that of a warehouseman. Hence, the third assignment of error is not sustained. Nor is the first. The declaration, it is true, sets forth the contract of the defendant as a common carrier, and though it is not liable as an insurer of the goods, its modified liability grows out of that contract.

A common carrier is regarded as an insurer of the safety of the goods against all losses except such as may be caused by the acts of God or the public enemy; and exceptions may arise from the fault of the owner, or from some inherent defect in the goods, or upon an express contract that the carrier shall not be liable for loss from a specified cause. In all such cases the burden is upon the carrier to establish the fact which will bring his case within an exception to the rule. When the carrier has shown that the loss was occasioned by a cause from tbe liability of which be is protected by law or by contract, it will not be presumed that his negligence contributed to the loss, but the presumption will be, in the absence of proof to establish his negligence, that the carrier has done his duty; and if it has been shown that the loss resulted from such cause, without also having shown that the carrier was negligent, the burden of proving his negligence devolves upon tbe plaintiff. This rule seems to be supported by a decided preponderance of authority: Hutchinson on Carriers, §§ 765-767. It has been established in New York and Pennsylvania, and considered as if applicable to the case of a bailee who receives goods to store for a compensation. Where a carrier, by contract, was exonerated from a loss by five, lie was field liable only as a bailee for hire; and it was decided that the bailor could not recover upon simple proof of the destruction of tbe goods by fire, be must go farther and show that tbe loss was caused by tbe negligence of the bailee: Lamb v. Camden & Amboy R. & Tr. Co., 46 N. Y. 271; Farnhm v. Camden & Amboy R. Co., 55 Pa. St. 53. In tbe latter case it was said: “ That where a bailee accounts for a loss in a way not to implicate himself in a charge of negligence, this is a sufficient defence, unless the plaintiff proves negligence.”

The plaintiff contends that these and like cases are where the liability was limited by contract, and that the rule should not be extended. But such limitation was held to operate no further than to put the carrier in the place of a bailee for hire. There is no reason why the rule should not apply to all bailees who are only liable for the loss of goods when the loss is caused by their negligence, especially to carriers who may become subject to a modified liability after the termination of their strict liability as carriers.

The defendant prayed instruction : “ That if the jury find that the goods in question were discharged from the steamship and delivered to tbe plaintiff on the pier or wharf, and that said goods were subsequently left upon said pier, in the custody of the defendant’s employees to await the convenience of tlie plaintiff, and that the same were destroyed by fire, then the plaintiff is not entitled to recover.” As already remarked we are of opinion that the testimony did not warrant a finding that the defendant was a gratuitous bailee, and therefore this prayer was properly refused.

In showing that the goods were destroyed by a fire which burned property of the defendant, as well as of the plaintiff, the defendant did not show circumstances that warranted a finding that the fire was caused by the defendant’s negligence. Even if tbe circumstances in evidence were such as to leave it doubtful whether the fire was caused by the defendant’s negligence the plaintiff could not recover. The jury must find the fact of negligence from evidence, and if the proofs leave the question in doubt, the burden being upon the plaintiff, he has failed to establish his right. Hence the prayer for instruction ought to have been affirmed, namely, that the defendant is not liable for the loss of the goods by fire unless the plaintiff proves, to the satisfaction of the jury, that the fire was occasioned by the neglect of the defendant.

The plaintiff rested upon proof of a prima facie right. This was repelled by oral testimony which undoubtedly satisfied the jury that an accidental fire destroyed the pier and all the goods thereon including the plaintiff’s; and if it did, there not being evidence that the fire was caused by the defendant’s neglect, the verdict should have been for the defendant. But the fact was for the jury, and therefore the defendant’s fifth point was properly refused.

Judgment reversed and venire facias de novo awarded.

Same versus Elizabeth Smart.

This cause was submitted with the preceding, and the pro-thonotary is directed to enter the same judgment as above.