Read v. Railway , 76 N.H. 555 ( 1913 )

If this were an action to recover for the defendants' failure to perform a duty imposed on them by the interstate commerce act (24 U.S. Stat. 379; 34 U.S. Stat. 584), it may be that the defendants' contention as to the court's want of jurisdiction would be sound. Texas etc. Ry. v. Company, 204 U.S. 426, — 9 Ann. Cas. 1075, 1082, note. This, however, is an action to recover for the defendants' failure to perform a duty imposed on them by the common law, and consequently the court of this state has jurisdiction of the matter. Mondou v. Railroad, 223 U.S. 1; Louisville etc. R. R. v. Company, 223 U.S. 70; New Marshall Co. v. Company,223 U.S. 473; Galveston etc. Ry. v. Wallace, 223 U.S. 481; Adams Express Co. v. Croninger, 33 Sup. Ct. Rep. 148.

The evidence tends to prove that the defendants' station agent was acting for them when he filled out the shipping order. Consequently there was evidence tending to prove that the defendants were in fault for the shipment of the lumber to a station other than the one to which the plaintiffs directed them to ship it.

The evidence excepted to was properly admitted. The defendants produced the shipping order, and there is nothing to show that the court considered it for an improper purpose. It was competent for the plaintiff to testify to what the defendants' agent told him the freight would be when directions were given to ship the car to West Swanzey.

Defendants' exceptions overruled.

All concurred.