Vuille v. Pennsylvania Railroad , 42 Pa. Super. 567 ( 1910 )

Opinion by

Henderson, J.,

The plaintiff’s cause of action as presented at the trial was damage resulting from the negligent transportation of an automobile which was delivered to the Florida East Coast Railway Company to be transported to Huntington, Pa. The defendant was the terminal carrier. The plaintiff’s evidence shows that the vehicle was delivered to the initial carrier in good condition; that it was securely packed in the car in a manner usual in the transportation of such property and that on its arrival at its destination it was in such a damaged condition as to be unfit for use and of little value. The property was transferred from the car in which it was shipped from Florida when that car arrived in Baltimore to a car of the defendant company and transported over the Northern Central Railroad and the main line of the defendant to its destination. There is little or no contradiction in regard to the condition of the motor car when it was shipped and its condition on its arrival in Huntington and a prima facie liability was established by this evidence. A presumption of .negligence arises which is sufficient to justify a recovery in cases where there is no other proof than of the delivery of the goods to the carrier in good condition and their arrival at the point of destination in a damaged condition: American Express Company v. Sands, 55 Pa. 140; Grogan & Merz v. Adams Express Company, 114 Pa. 523; Buck v. Penna. R. R. Co., 150 Pa. 170; and the rule seems to prevail generally that when goods are delivered to the first carrier in good order and are afterwards injured the presumption in the absence of anything to the contrary is that they were injured by the last carrier: 4 Elliott on Railroads, sec. 1450; 5 Thompson on Negligence, sec. 6569; Cote v. N. Y., N. H. & H. R. R. Co., 182 Mass. 290. At the conclusion of the plaintiff’s evidence the burden was therefore on the defendant to overcome the presumption of negligence. This it undertook to do by proof of the condition of the automobile at the time it was received from the connecting carrier at Baltimore, and the evidence was to the effect that when it was examined there it looked like an old automobile; that it was covered with dust or some other substance and that the “rear-end” lamp was broken. Nothing else was found to be broken at the examination then made. The automobile was not inspected between Baltimore and Huntingdon. The plaintiff offered evidence in rebuttal to support the theory that the injuries to it were received in its carriage by the defendant because of the failure to properly block and secure it, and the evidence bn that subject was contradictory as some of the defendant’s witnesses testified that it was blocked when the car arrived at its destination. Witnesses for the plaintiff who examined the car soon after it arrived did not find any blocks or evidence of blocking nor was any witness called who removed the blocks. Evidence was also lacking as to the manner in which the automobile was secured in the car when it left Baltimore. The evidence tended to show that such a vehicle not properly secured in the car would be injured in the usual movements of the train. The court submitted to the jury the question whether the damage to the machine occurred while it was in the custody of the defendant. The first and second assignments complain of the refusal of the court to give binding instructions for the defendant and to enter judgment non obstante veredicto. To comply with either of these requests it would have been necessary to eliminate from the case the presumption arising from the plaintiff’s evidence and material testimony bearing on the question of the relation of the defendant to the plaintiff’s damage. We regard the question presented as one of fact for the determination of the jury. The defendant was the last carrier and the property was concededly in a badly damaged condition when it was delivered to the plaintiff. Whether it was transported wholly over the defendant’s line or for a part of the route only it was incumbent on the defendant to account for its damaged condition and we find no error, therefore, in that part of the charge embraced in the fourth assignment. The presumption of negligence arising from the plaintiff’s evidence could, of course, be rebutted, but this was the defendant’s burden and whether it was successfully done was a question for the jury under all of the evidence. The charge presented the case very clearly and fairly on this subject. The third assignment relates to the charge of the court on the subject of damages. The 'particular part of the charge objected to is that which directed the attention of the jury to the evidence of the defendant in regard to the condition of the machine at Baltimore and instructing them to determine from the evidence what the injury was and what the value of the automobile was at that time. The complaint is that no evidence was introduced as to what the automobile was worth at Baltimore and that therefore the court was in error in instructing the jury in the manner described. The language of the court in this and other parts of the charge indicates that the word “value” was used in its broad sense as referring to the properties which rendered the automobile useful or desirable; its excellence or utility and not to its market value. It will be observed, too, that the evidence as to the condition of the machine was introduced by the defendant. It yras presumably within its power to present testimony showing the extent to which the vehicle was depreciated in value by the broken lamp or by the accumulated dust. The plaintiff does not found anything of his claim on the dusty condition of the automobile but on the structural defects which rendered it useless for its purpose and of little value in the market. The evidence of damage was introduced by the plaintiff in the presentation of his case in chief. To avoid or diminish liability was the burden of the defendant. If there was no evidence of the pecuniary amount of the damage done to the machine before it came into its hands the defendant has no ground for complaint that the court permitted the jury to take into consideration the damaged condition as alleged to have existed at Baltimore in fixing the amount of damages to which the plaintiff was entitled.

The assignments are overruled and the judgment affirmed.