The defendants' first request for instructions to the jury was properly refused. It assumes, as a matter of law, that the warehouse was a reasonable place to require Plaisted to accept the delivery of his freight. The instructions of the court were, in substance, that the defendants were not bound, as a matter of law, to deliver the crate upon the platform outside the freight-house, neither had they a right, as a matter of law, to deposit it in the freight-house and compel Plaisted to receive it there; but they were bound to deliver the freight in a convenient and suitable place in which it was reasonable for them to compel Plaisted to receive it, which might be inside the freight-house, or upon the platform outside, or elsewhere. It is a question for the jury, under the circumstances of each particular case, to say what, under proper instructions from the court, would be reasonable in this respect, and this irrespective of the question whether the defendants were liable to Plaisted as common carriers or depositaries. I do not think it necessary to inquire whether the defendants, at the time of this accident to Jewell, were liable to Plaisted in the one capacity or the other; for in whichever capacity they were liable they were bound to deliver the goods to Plaisted. This might have been by pointing them out to him in their warehouse, provided that were reasonable; or it might have been by delivering them elsewhere, provided that were reasonable, as the jury might find. The period when the liability of railroads as common
carriers ends was very fully discussed in Moses v. Boston Maine Railroad,32 N.H. 523, and their liability as depositaries was also fully discussed in Smith v. Nashua Lowell Railroad, 27 N.H. 86; and we see no occasion to review the law as laid down in those cases.
The defendants' second and third requests for instructions were substantially granted in the instructions by the presiding justice to the jury; but the qualification, that the defendants would be liable if Monneghan, in the exercise of ordinary care, ought to have selected a fitter person, and ought not to have permitted Garland to assist him, if they should find the accident was owing to the carelessness of Garland, I think was erroneous. The declaration alleges an injury done the plaintiff by the defendants' servant, Monneghan, in carelessness wheeling out and placing on the platform the crate of crockery. There is no allegation that it was done by Garland, or that Garland was a servant of the defendants, or that the defendants, or their servant Monneghan, were guilty of negligence in procuring or permitting Garland to aid in the removal of the crate. And if it had been properly alleged that the defendants' servant, Monneghan, was guilty of negligence in procuring an unsuitable person to assist in the removal, I think the cause would be too remote. The proximate cause of the injury would be Garland's negligence. The allegation would be for a cause that created a cause that did the injury, — that is, that Monneghan's negligence employed Garland, a negligent person, who committed the wrong or injury through negligence. It is not necessary to enlarge upon the rule of very general application in the law, "In jure, causa proxima, non remota, spectatur," nor upon the maxim of the schoolmen, "Causa causantis, causa est causati," further than to add, in the words of SHAW, C. J., — "The law looks to a practical rule, adapted to the rights and duties of all persons in society, in the common and ordinary concerns of actual and real life; and, on account of the difficulty in unravelling a combination of causes, and of tracing each result, as a matter of fact, to its true, real, and efficient cause, the law has adopted the rule, before stated, of regarding the proximate and not the remote cause of the occurrence which is the subject of inquiry." Marble v. Worcester, 4 Gray 395; Cook v. Charlestown,98 Mass. 80; Tutein v. Hurley, 98 Mass. 211.
The jury, by their answer to the fourth question, found that the accident was the result of the joint negligence of Monneghan and Garland. But, having failed to agree upon an answer to the fifth question, whether there was any want of ordinary care on the part of Monneghan in not having a more suitable person than he did to assist him in moving the crate, the defendants claim that a verdict should have been ordered for them, because it does not appear that the negligence of Monneghan alone, in wheeling the crate, was sufficient to cause the accident, and because they are made liable for the negligent act of Garland, or the joint negligence of Garland and Monneghan. It is true that there was no special finding of the jury upon the question of whether Monneghan's negligence was sufficient; and, had a general
verdict been ordered by the court, it might have been necessary to set the verdict aside. But the case states that the jury found a verdict for the plaintiff; and I think it must follow that it was found on account of the negligent act of Monneghan, and that his negligence alone was sufficient to cause the injury. The instructions of the court were that they must find, in order to entitle the plaintiff to recover, that Monneghan's carelessness, in wheeling or unloading the crate, caused it to tip over and injure the deceased; and that the defendants were not liable for the neglect or carelessness of Garland, except as before stated.
As the verdict is to be set aside upon another ground, the question is only important in the event of a new trial.
The defendants' fourth request for instructions was as follows:
"That, even if the defendants were bound, as a matter of law, to deliver Plaisted's freight on the platform, still he or his teamster might, if he chose, receive the delivery of it inside the freight-house; that the testimony of Garland and Monneghan is competent evidence, from which the jury may find that the Plaisted freight was, in fact, delivered and accepted in the freight-house, — and if it was thus delivered and accepted, then the question, whether or not the defendants were bound to deliver it on the platform or elsewhere, does not arise in the case, and the jury need not consider that matter at all; and, in such case, Monneghan's act in wheeling out and assisting in unloading the crate would be his own voluntary matter, the defendants not being responsible even if he was careless in doing it."
We think the instructions asked should have been given.
It was the duty of the defendants to transport the goods, and deliver them to Plaisted from their cars or at their freight-house. But the duty might be modified as to the manner of its performance. The general duty of the defendants as common carriers was, to make a true delivery of the goods at the usual place, which was from their cars or at their depot; but we think it must be entirely clear that it was competent for Plaisted to assent to a delivery elsewhere, and if he accepted the delivery of his goods elsewhere he thereby assumed the further responsibility, and the defendants were exempted from the duty of making any other or different delivery. Lewis v. Western Railroad, 11 Met. 509. In that case, it is remarked by DEWEY, J., — "Suppose a bale of goods was transported by them [the defendant railroad], and on its arrival at the depot the owner should step into the car and ask for a delivery there, and thereupon the goods should be passed over to him in the car: the delivery would be perfect; and, if any casualty should subsequently occur in taking out the bale, the loss would be his.
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The defendants' first request for instructions to the jury was properly refused. It assumes, as a matter of law, that the warehouse was a reasonable place to require Plaisted to accept the delivery of his freight. The instructions of the court were, in substance, that the defendants were not bound, as a matter of law, to deliver the crate upon the platform outside the freight-house, neither had they a right, as a matter of law, to deposit it in the freight-house and compel Plaisted to receive it there; but they were bound to deliver the freight in a convenient and suitable place in which it was reasonable for them to compel Plaisted to receive it, which might be inside the freight-house, or upon the platform outside, or elsewhere. It is a question for the jury, under the circumstances of each particular case, to say what, under proper instructions from the court, would be reasonable in this respect, and this irrespective of the question whether the defendants were liable to Plaisted as common carriers or depositaries. I do not think it necessary to inquire whether the defendants, at the time of this accident to Jewell, were liable to Plaisted in the one capacity or the other; for in whichever capacity they were liable they were bound to deliver the goods to Plaisted. This might have been by pointing them out to him in their warehouse, provided that were reasonable; or it might have been by delivering them elsewhere, provided that were reasonable, as the jury might find. The period when the liability of railroads as common
carriers ends was very fully discussed in Moses v. Boston Maine Railroad,32 N.H. 523, and their liability as depositaries was also fully discussed in Smith v. Nashua Lowell Railroad, 27 N.H. 86; and we see no occasion to review the law as laid down in those cases.
The defendants' second and third requests for instructions were substantially granted in the instructions by the presiding justice to the jury; but the qualification, that the defendants would be liable if Monneghan, in the exercise of ordinary care, ought to have selected a fitter person, and ought not to have permitted Garland to assist him, if they should find the accident was owing to the carelessness of Garland, I think was erroneous. The declaration alleges an injury done the plaintiff by the defendants' servant, Monneghan, in carelessness wheeling out and placing on the platform the crate of crockery. There is no allegation that it was done by Garland, or that Garland was a servant of the defendants, or that the defendants, or their servant Monneghan, were guilty of negligence in procuring or permitting Garland to aid in the removal of the crate. And if it had been properly alleged that the defendants' servant, Monneghan, was guilty of negligence in procuring an unsuitable person to assist in the removal, I think the cause would be too remote. The proximate cause of the injury would be Garland's negligence. The allegation would be for a cause that created a cause that did the injury, — that is, that Monneghan's negligence employed Garland, a negligent person, who committed the wrong or injury through negligence. It is not necessary to enlarge upon the rule of very general application in the law, "In jure, causa proxima, non remota, spectatur," nor upon the maxim of the schoolmen, "Causa causantis, causa est causati," further than to add, in the words of SHAW, C. J., — "The law looks to a practical rule, adapted to the rights and duties of all persons in society, in the common and ordinary concerns of actual and real life; and, on account of the difficulty in unravelling a combination of causes, and of tracing each result, as a matter of fact, to its true, real, and efficient cause, the law has adopted the rule, before stated, of regarding the proximate and not the remote cause of the occurrence which is the subject of inquiry." Marble v. Worcester, 4 Gray 395; Cook v. Charlestown,98 Mass. 80; Tutein v. Hurley, 98 Mass. 211.
The jury, by their answer to the fourth question, found that the accident was the result of the joint negligence of Monneghan and Garland. But, having failed to agree upon an answer to the fifth question, whether there was any want of ordinary care on the part of Monneghan in not having a more suitable person than he did to assist him in moving the crate, the defendants claim that a verdict should have been ordered for them, because it does not appear that the negligence of Monneghan alone, in wheeling the crate, was sufficient to cause the accident, and because they are made liable for the negligent act of Garland, or the joint negligence of Garland and Monneghan. It is true that there was no special finding of the jury upon the question of whether Monneghan's negligence was sufficient; and, had a general
verdict been ordered by the court, it might have been necessary to set the verdict aside. But the case states that the jury found a verdict for the plaintiff; and I think it must follow that it was found on account of the negligent act of Monneghan, and that his negligence alone was sufficient to cause the injury. The instructions of the court were that they must find, in order to entitle the plaintiff to recover, that Monneghan's carelessness, in wheeling or unloading the crate, caused it to tip over and injure the deceased; and that the defendants were not liable for the neglect or carelessness of Garland, except as before stated.
As the verdict is to be set aside upon another ground, the question is only important in the event of a new trial.
The defendants' fourth request for instructions was as follows:
"That, even if the defendants were bound, as a matter of law, to deliver Plaisted's freight on the platform, still he or his teamster might, if he chose, receive the delivery of it inside the freight-house; that the testimony of Garland and Monneghan is competent evidence, from which the jury may find that the Plaisted freight was, in fact, delivered and accepted in the freight-house, — and if it was thus delivered and accepted, then the question, whether or not the defendants were bound to deliver it on the platform or elsewhere, does not arise in the case, and the jury need not consider that matter at all; and, in such case, Monneghan's act in wheeling out and assisting in unloading the crate would be his own voluntary matter, the defendants not being responsible even if he was careless in doing it."
We think the instructions asked should have been given.
It was the duty of the defendants to transport the goods, and deliver them to Plaisted from their cars or at their freight-house. But the duty might be modified as to the manner of its performance. The general duty of the defendants as common carriers was, to make a true delivery of the goods at the usual place, which was from their cars or at their depot; but we think it must be entirely clear that it was competent for Plaisted to assent to a delivery elsewhere, and if he accepted the delivery of his goods elsewhere he thereby assumed the further responsibility, and the defendants were exempted from the duty of making any other or different delivery. Lewis v. Western Railroad, 11 Met. 509. In that case, it is remarked by DEWEY, J., — "Suppose a bale of goods was transported by them [the defendant railroad], and on its arrival at the depot the owner should step into the car and ask for a delivery there, and thereupon the goods should be passed over to him in the car: the delivery would be perfect; and, if any casualty should subsequently occur in taking out the bale, the loss would be his. The place and manner of delivery may always be varied with the assent of the owner of the property; and, if he interferes to control or direct in the matter, he assumes the responsibility."
In the case at bar, when Plaisted's team came for his goods, the several packages were pointed out to his servants, Garland and Nutter, by Monneghan, the servant of the defendants, inside the freight-house.
So far as the case finds, no claim was made by them that the place
inside where the goods were deposited was not convenient and suitable, or that they were entitled to have the goods delivered to them upon the platform outside; but they took and loaded all the articles except the crate. That they did this, and did not call upon Monneghan to do it, or claim that he should deliver the goods outside upon the platform, was evidence for the jury to find an acceptance of them by Plaisted's servants inside. Garland then requested Monneghan to assist in wheeling the crate to the platform. This request was also evidence, from which it was competent for the jury to find a delivery accepted inside. It is true that the jury answered the ninth question, — "Did the man to whom Plaisted entrusted the duty of going for his goods undertake to accept the crate inside the depot, or to relieve the defendants from any duty which they were bound to perform in relation to its delivery?" — in the negative; but the case also finds that the court "did not instruct the jury that their finding upon the ninth question would be in any way material in the decision of the cause."
I think here was evidence from which the jury might have found a delivery and acceptance of the goods inside the freight-house, and that the defendants' request should have been granted. If the instructions asked for had been given, and if the court had instructed the jury in what respect their finding "would be material in the decision of the cause," their finding upon the ninth question might have been different. However that may be, the defendants were entitled to have the jury properly instructed on this point; and because they were not, the verdict must be set aside.
It necessarily follows, that if there was a delivery and acceptance of the goods inside the depot, Monneghan's act, in wheeling out and assisting in unloading the crate at the request of Plaisted or his servants, would be his own voluntary matter, and the defendants would not be responsible for his negligence.
The jury were also instructed, that "if it was Monneghan's ordinary custom, when heavy freight like this crate of crockery was called for by the consignees after it had been deposited in the freight-house to remove it to the platform outside, then this would become the service of the defendants, even if their duty had ceased as to the delivery of the goods." We are unable to assent to the law as here laid down. The terms "custom" and "usage" are often used indifferently. "Their true office is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contract, arising not from express stipulation, but from mere implications and presumptions and acts of a doubtful and equivocal character," etc. 2 Gr. Ev., sec. 251. Evidence of Monneghan's custom in this respect was admissible, as showing the nature of the defendants' contracts as to the transportation and delivery of freight, and as bearing upon the particular mode and place of delivery of heavy freight, and, as the plaintiff's counsel says in his brief, is evidence of the extent of Monneghan's services. But still it is a question of fact for the jury to say, upon all the evidence and circumstances in the case, including the
evidence of custom, what the defendants' contract or undertaking, as to the mode and place of delivery of freight, was. But the instructions went further than this, and the jury were told that the ordinary custom of Monneghan to remove heavy freight from the inside to the platform outside, even after the defendants' duty had ceased as to the delivery of the goods, would become the service of the defendants. It is difficult to see how, after the defendants' duty had ended as to the delivery of freight, any custom or practice of Monneghan's, in assisting consignees in moving or loading their goods, call affect the defendants. The defendants are only responsible for their servant's acts when acting within the line of his duty, and within the line of their duty to their consignees. When that duty has ended, they are no more responsible for his acts and doings than for the acts and doings of any other person.
The instructions requested by the defendants upon the question of damages were given in substance, though not in the form asked for. If, as seems to be generally conceded, the jury found that the accident caused or accelerated the disease of which Jewell died, the greater part of the large sum assessed by them in damages must have been on that account. Their finding upon this point seems to be overwhelmingly against the weight of evidence. They had the unsatisfactory, unsubstantial, and unreliable theories or speculations of one of the physicians, as to the origin and growth of this mysterious disease, upon which to ground their finding. In Wendell v. Safford, 12 N.H. 175, it was held — GILCHRIST, J., delivering the opinion of the court — that "courts of law possess the power, and it is often their duty for the purposes of justice, to set aside a verdict where it is decidedly against the weight of the evidence."
As this verdict is set aside upon other grounds, it does not become necessary to inquire whether it is not "so decidedly against the weight of evidence as to make it apparent that the jury must have been misled, or have failed to consider intelligently the evidence laid before them." Clark v. Cong. Society, 45 N.H. 334. But as that necessity does not arise, there is no occasion to discuss this branch of the case further.
The plaintiff was properly admitted to testify — Gen. Stats., ch. 209, sec. 20 — except so far as would lead to the violation of marital confidence — Ib., sec. 21; but as no marital confidence was violated, no exception lies to the admission of her testimony.