Opinion
Decided March 23, 1931.
Carriers — Action against delivering carrier for damages — Burden on shipper to establish shipment delivered to original carrier in good condition.
Burden is on shipper suing delivering carrier for damages to establish shipment was in good condition when delivered to original carrier.
ERROR: Court of Appeals for Hamilton county.
Mr. W.B. Mente and Messrs. Benham Benham, for plaintiff in error.
Messrs. Dinsmore, Shohl Sawyer, for defendant in error.
Error is prosecuted to this court from the court of common pleas of Hamilton county, wherein the judgment of the municipal court of Cincinnati, in favor of the Erie Railroad Company, defendant in that court, was affirmed. The plaintiff brought suit against the defendant for damages to a shipment of freight.
The defendant was the delivering, but not the receiving, carrier. There was no evidence of the condition of the goods when they were delivered to the original carrier.
It is urged that the giving of the following special instruction, at the request of the defendant, constituted prejudicial error: "I charge you that before plaintiff can recover, one of the things which plaintiff must prove by a preponderance of the evidence is that the goods involved in this action were delivered by the shipper, The S. Snyder Corporation of Rochester, New York, to the initial carrier, The Delaware Hudson Company, in good condition."
It is claimed that the shipper is not required to produce evidence that the shipment was in good condition at the time it was delivered to the original carrier. We hold otherwise, and that the burden is upon the shipper to show the shipment was in good condition at the time it was delivered to and accepted by the original carrier.
There was no error prejudicial to the plaintiff in the giving of this charge.
The defendant at the close of the evidence of the plaintiff in the municipal court, there being no evidence of the condition of the goods at the time of delivery, moved for an instructed verdict, and again renewed this motion at the close of all the evidence. Both motions were overruled, and both should have been granted.
The verdict in favor of the carrier was entirely justified by the lack of any evidence indicating that the goods were, when shipped, in a condition different from that when received.
The judgment of the court of common pleas, affirming the judgment of the municipal court of Cincinnati, is affirmed.
Judgment affirmed.
HAMILTON and CUSHING, JJ., concur.