Phœnix Pot Works v. Pittsb. Etc. R.

20 A. 1058, 139 Pa. 284, 1891 Pa. LEXIS 989

Opinion

OpinioN,

Mb. Justice Stebbett:

There was no error in refusing to charge, as requested in defendant’s first point, “ that, under all the evidence, the verdict must be for defendant.” In affirming defendant’s third point, “ that no presumption of negligence on the part of the carrier arises from the condition of the clay pots at the place of delivery,” etc., the learned judge went to the very verge of propriety, if not beyond it; but of course the defendant does not complain of that.

The case was clearly a proper one for the consideration of the jury on all the> evidence before them. Considering the damaged condition of the pots, at the place of delivery, in connection with the evidence as to their soundness when shipped, and the careful manner in which they were packed in the ear, and the further fact that similar pots, packed in like manner, had uniformly reached their destination in good condition, it cannot be successfully contended that, under all the evidence, the jury were not warranted in finding that the destruction of the pots was the result of actual negligence on the part of the carrier. If they believed, as they might well do, from the evidence before them, that the pots were so carefully and securely packed in the car that nothing short of positive carelessness, in course of transportation, could have injured them, it was their duty to find as they did.

There is no analogy between the death of a horse or other animal in transitu, without any visible cause,’

Footnotes

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* and the injury or destruction of inanimate property, such as the clay pots in this case. In the absence of proof to the contrary, the fair inference is that the death of the former is due to natural causes; but not so in the latter case. If the pots were carefully and securely packed, when delivered to the carrier, and, when they reached their destination, were found in the badly damaged condition described by the witnesses, the only reasonable inference was that they were not transported with ordinary care. These questions of fact and inferences were for the jury, and' it would have been error to have withdrawn them from their consideration.

In defendant’s second point for charge, it is erroneously assumed that nothing short of proving collision or derailment of the cars would warrant the inference that the injury complained of was the result of actual negligence. The plaintiff was not restricted to proof of such gross negligence as would result in either collision or derailment of the cars. The point as presented might have been refused, but it was adequately answered by saying: “ There is no proof of collision, or of the cars being thrown from the track; but, whether there was negligence is a question of fact for the jury.”

It follows from what has been said that there was no error in affirming plaintiff’s second point. Neither of the specifications of error is sustained.

Judgment affirmed.

See Penna. R. Co. v. Raiordon, 119 Pa. 577.