Lessard v. Boston & Maine Railroad

45 A. 712, 69 N.H. 648

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1899
• Status: Published

Opinion

Peaslee, J.

The question of whether the defendants contracted to carry the plaintiff and his baggage beyond their own line of road was one of fact, and the verdict will not be disturbed if there was evidence to warrant the conclusion reached. Gray v. Jackson, 51 N. H. 9.

"Whether the printed matter on the ticket was express notice to the purchaser, who was unable to read it, is a question not necessary to be considered. It was incumbent upon the plaintiff to prove that the defendants made a contract to carry his baggage beyond their own line of road. It was not necessary for the defendants to negative a presumption that they made such a contract, for under the law of this state no such presumption arose. Gray v. Jackson, supra. The case differs from those where the carrier attempts to limit the liability which ordinarily attaches to the contract for carriage. In such cases, the party who seeks to vary the agreement ordinarily implied as a part of the contract to carry must show that the other party had notice of the intent to make such special arrangement. But here it was necessary for the plaintiff to prove as a fact that the defendants did make the special contract which he sets up.

The verdict was based upon the finding that the defendants gave express notice that they did not contract as the plaintiff claimed, and seems to have resulted from the theory that the defendants must show, not only that they did not make the contract, but also that they expressly refused so to do. While this theory is erroneous, yet, as the prevailing party was held to be under a greater obligation than the law imposed, the verdict must stand. Felch v. Railroad, 66 N. H. 318. The finding that they gave express notice that they would not contract in a certain way, necessarily includes one that it was not proved that they did so contract.

jException overruled.

All concurred.