Hull v. Pennsylvania Railroad , 1896 Pa. Super. LEXIS 211 ( 1896 )

Opinion by

Beaver, J.,

It is impossible to eliminate from the consideration of this case the questions of fact concerning which there was material dispute in the court below. One of these facts was whether or not the buggy carried by the defendant from Cincinnati to the siding at Latrobe ever was placed in its warehouse. It is impossible to determine this question upon the testimony given in behalf of the appellant itself. There was, therefore, no error in the answer to the appellant’s second point which constitutes the first assignment of error. Appellant claims that the point having been affirmed the case should have been taken from the jury, but the question was whether the facts upon which the point was based were correct, and these facts having been left to the jury the court could not affirm the point unequivocally, but added by way of limitation: “ This relates to its liability after it has reached the warehouse at Latrobe,” and is correctly stated. If the buggy, which was the subject of dispute, had never reached the warehouse—and that was one of the questions in controversy—the principle stated could not apply.

So in regard to the second assignment of error. The proposition of law contained in appellant’s first point was correct and it was affirmed by the court, with the qualification that the jury “ will recollect what I said about the question of whether or not it has been waived, it being also the law that a party to a contract may waive a provision for its benefit.” The question as to whether or not there had been a waiver of the written notice provided for in the bill of lading was fairly left to the jury and, under all the facts of the case, this qualified affirmation of the second point was therefore entirely proper. The appellant acted upon the verbal notice given by the appellee and communicated with him in regard to the efforts made to trace the property. Whether these acts constituted a waiver of the written notice was a question of fact for the jury and was properly submitted for its finding.

It follows, from what we have said, that the third assignment of error cannot be sustained. The facts of the case were of such a character that they were necessarily submitted to the jury, and this was done in a way in which the defendant has little cause for complaint. The questions of law upon which the defendant asked instructions were ruled in such a manner that it cannot well complain. If the verdict had been for the defendant, the plaintiff might with some reason have complained of the answers of the trial judge to the defendant’s points. From the standpoint of the defendant, we can see no reversible error and the assignments are, therefore, all overruled.

Judgment affirmed.