Adams Express Co. v. Sharpless & Sons

77 Pa. 516, 1876 Pa. LEXIS 2

• Court: Supreme Court of Pennsylvania
• Decided: January 6, 1876
• Docket: No. 132
• Status: Published

Opinion

Mr. Justice Williams

delivered the opinion of the court,

If the plaintiffs’ goods were destroyed by fire in transit, the defendants, under the exception in their contract, were not responsible for their loss unless it was occasioned by their negligence. The question of their destruction by fire, was properly left to the jury. But there was error in the manner in which the question of negligence was submitted to their determination. The facts as disclosed by the evidence are briefly these:

The defendants had two express-cars in the passenger tram which left Jersey City for Philadelphia on the night of the 9th of July 1871. They were between the tender and the baggage-car. The plaintiffs’ silks were in the car next the tender, which was filled with goods that were to be delivered in Philadelphia, Wilmington and Baltimore.

The other contained goods which were to be delivered in Pitts-burg and Cincinnati. The cars were made of wood, with doors sliding on the outside, leaving an opening or crevice about a quarter of an inch wide between the doors and the side of the car. The doors were locked up and sealed. The car containing the plaintiffs’ goods had been in use about five years for the transportation of goods by express. It was lined with wood, well-finished, and in good order. The messenger in charge of the goods rode in the forward passenger-car. The locomotive was a wood-burning engine, and according to the testimony of the messenger, threw a regular stream of sparks from the time it left the depot. As the train was passing through “Bergen Out,” about two miles from Jersey City, fire was discovered inside the car containing the plaintiffs’ silks, and before it was extinguished, a large quantity of goods near one of the doors was either greatly damaged or wholly destroyed. These are the material facts, and if they tend to show that the fire was the result of negligence, in what did the negligence consist? Was the fire occasioned by the sparks from the engine, and if so, would it have occurred if the engine and express-car had been in good order and condition ? Doubtless the evidence showing that the engine was throwing a regular stream of sparks from the time the train left the depot, and that there was an opening or crevice between the sliding-doors and the side of the car through which the sparks mfight enter, was proper for the consideration of the jury in determining what was the cause of the fire, and whether it was occasioned by any want of ordinary and reasonable care on the part of the defendants, and if the question had been submitted to them with proper instructions on the evidence touching these facts, the defendants would have had no just cause of complaint. But the court below ignored this aspect of the case, and instructed the jury that “ negligence, applying it to the case of a common carrier, would be the omission of such reasonable and ordinary care and precaution as would have averted the loss. The plaintiff has referred you in this case to a number of circumstances. He refers you to the fact that this was an old wooden car, five years or more old, and that it was placed in immediate proximity to the engine, next to the tender; that this locomotive was a wood-burning locomotive, and therefore more apt to scatter sparks than the ordinary coal-burning locomotive, in that way increasing the danger, and that as the danger increased, a common carrier is bound to exercise increased caution and care, with a view to avert consequent damage or loss. The plaintiff has also ad verted to the fact that there was a messenger on this train, and that he was not in the best place for him to see when the fire broke out, or to apply prompt means for its extinguishment. If you find, in view of all the facts and the evidence, that the defendant omitted to do that which a man of ordinary and reasonable care and caution would have done under the circumstances to protect this car from fire, then it was negligence, and the defendants must answer accordingly.” In answer to the defendants’ second point, the learned judge further said: “I must say to you that there is an opinion expressed by some of the witnesses in their depositions, that the car in which the fire occurred, was a proper one, and of the ordinary kind, that was used by the Adams Express Company. This, gentlemen of the jury, is merely their opinion. It may be, that in view of all the circumstances of the case, you will consider the facts themselves in such a light as to form an opinion which may be quite as conclusive as the mere oral expression of opinion of any witness produced before you. If, from the facts in evidence, to which I have already alluded — if the car was a wooden one, with the doors sliding on the outside, and the engine of a wood-burning character, and this car was not the kind of a car that ought to have been exposed in such close proximity to the engine — I say, if you find in any of these particulars the absence, on the part of the defendants of such precaution and care as a prudent man would exercise in following the business of a common-carrier, then you will find, by your verdict, negligence, notwithstanding the oral expressions of opinion bythese witnesses.” Can there be a doubt that it was error to submit the question of negligence to the jury with such instructions ? There was not a particle of evidence tending to show that it was unsafe and improper to transport the goods in a wooden car, with doors sliding on the outside, or that it was unsafe and improper to use a wood-burning locomotive to propel the train. Nor was there any evidence of want of reasonable and ordinary care in placing the car next to the tender, or in permitting the messenger to ride in the front passenger-car. And yet the court told the jury they might find negligence in any of these particulars. It is true that negligence, as a general rule, is a question of fact for the jury. But the jury cannot find negligence from facts and circumstances which do not tend to show want of reasonable and ordinary care, any more than they can find any other facts, without competent and sufficient evidence. Whether the defendants in this case were guilty of negligence or not, it is clear that the question was submitted to the jury upon facts which were insufficient to justify the finding. It was undoubtedly error, though not assigned as such, to instruct the jury that negligence, applying it to the. case of a common-carrier, would be the omission of such reasonable and ordinary care and precaution as would have averted the loss.

There is nothing in the other assignments of error requiring special notice. The first and third are not assigned in accordance with the rule, and there is nothing in the bill of exceptions to justify the fourth and fifth.

Judgment reversed, and a venire facias de novo awarded.