Whitworth v. Erie Railway Co.

Headnote

A contract made by one carrier for the transportation of goods over his own and connecting lines, adopted and acted upon by the other carriers, inures to the benefit of all thus ratifying it—e. ff., one containing a clause exonerating the carrier and the connecting lines from liability from loss by fire, &c.

Meld, in this case, that such exoneration did not extend to case of loss by fire, resulting from defendant’s negligence; but proof of the destruction by fire does not, of itself, warrant any inference that such

fire resulted from the negligence of the defendants; and the burden is upon the plaintiffs to establish the fact of such negligence by a clear preponderance of credible testimony.

The defendants in this case were bound to deliver the goods to the succeeding carrier, and witliiii a reasonable time, and in accordance with the established usage and course of business. If, through their negligence, in omitting to make such delivery, the goods were destroyed by lire, they are responsible for the loss, notwithstanding the restrictive clauses contained in the bill of lading. But the burden of proof in establishing the fact of such negligence, and that the loss sustained is in consequence thereof, is upon the plaintiff.

A submission of the question to the jury was not called for, inasmuch as the preponderance of evidence in favor of the defendant, upon the point in controversy, was such that a verdict against them could not be sustained.

Plaintiff’s exceptions, ordered to be heard in first instance at general term, complaint being dismissed.