
    The Cleveland and Toledo Railroad Company v. Johnson & Kellogg.
    1. Where the issue in a case presents a question of negligence as the foundation of the plaintiff’s right of recovery, and the intervention of a jury being waived, the court have found for the plaintiff on the issue made, and judgment has been entered thereon, and the cause comes up on a petition in error, founded on an agreed statement of the facts, but omitting a statement whether there was negligence or not, this court can not find that fact contrary to the finding of the court below, the question whether there was negligence or not being not a question of law merely, but a question of fact to be found from the testimony.
    2. Had the parties proceeded, under the 280th section of the code, with a view of excepting to the decision of the court below, upon the questions of law involved in the trial, it would have been the duty of the court to state in-writing, both the conclusions of fact and the conclusions of law separately.
    Error to tbe court of common pleas of Lorain county. Reserved' in the district court.
    The original action was brought by Johnson & Kellogg, against the Cleveland and Toledo Railroad Company, before a justice of the-peace, and appealed to the court of common pleas of Lorain county, to recover damages for an injury to a case of goods, delivered to the-railroad company, at Cleveland, for transportation to Oberlin, and which ^happened under the circumstances set forth in the following agreed statement of facts :
    “ It is agreed between the parties that the proofs will show the-plaintiffs to be a partnership, formed for the purpose of carrying on the business of merchandising, in the State of Ohio. That some time prior to the 3d day of May, A. d. 1854, the said plaintiffs purchased, in New York, a large quantity of dry goods and merchandise, for the purpose of stocking their store, in Oberlin, Lorain, county, Ohio. That said goods and merchandise were boxed up in packages of various sizes and weights, in said city of New York,, and by the plaintiff labeled or marked, ‘ Johnson & Kellogg, Oberlin, Ohio,’ and were delivered, for transportation, to the New York and Erie Railroad Company, at New York. That said New York and Erie R. R. Co. transported said goods to Cleveland, Ohio, where, on or about the 3d day of May, 1854, the said company delivered said goods and merchandise to the C. & T. R. R. Co. That the said C. & T. R. R. Co., defendant, as a common carrier, received said goods and merchandise, and in the same order and condition in which they were received, transported them to Oberlin, as directed, and there deposited them in the depot of said 0. & T. R. R. Co., the terminus of said road at that point, the plaintiff not being there to-receive them at their arrival. That the said depot, or warehouse, is a good, substantial, and proper warehouse for depositing and stowing goods and merchandise therein. That it is, and at that time was, the usage and' practice of said C. & T. R. R. Co., not ■only to transport goods and merchandise over their road, but .also to deposit them in their depot warehouse, without charge for storage, until the owners should have a reasonable time to remove them, and that said usage and practice was well ’known to the plaintiffs. That some time during the day of •the arrival of the goods, and after they had been deposited in •said depot or warehouse, the drayman, who, by an arrangement *with the plaintiffs, carted all goods arriving for plaintiffs, from the depot to plaintiffs’ store, called at the depot, and finding the goods and merchandise above specified there, did receipt them in good order on the books of the defendants, and received one load, which he took to the plaintiffs’ store, having had them pointed ■out to him. That it is, and then was, the usage and custom of said C. & T. R. R. Co , to oblige and allow all persons having goods •transported by said company over their road, and deposited in their warehouse, to pay transportation charges, and receipt their .goods before delivery', but by a private arrangement between the plaintiffs and the station agent of the said railroad company at -that point, the plaintiffs did not pay their freight on the receipt of the goods; but whenever the said agent presented the bills, the .agent being responsible for the freight to the railroad company, so far as he departed from the usual custom, and which arrangement was unknown to the railroad company. That the agent having ■charge of the freight depot was in the habit of assisting the dray-men in carrying out the goods and placing them on the platform, in order to get rid of the goods and persons, when he was not ■ otherwise engaged, and the draymen were in the habit and were permitted to enter the depot to ■ carry away goods, after having them pointed out to them by the agents of the railroad company. 'That in the after-part of the same day, the drayman returned to isaid depot or warehouse, for the balance of the said goods. That the boxes being of a heavy class, the drayman entered the depot, .and a case of dry goods, weighing 450 or 500 pounds, was loaded •on a truck, and a hand in the employ of the railroad company about the depot, in the ordinary way, wheeled said box out of said ■ depot and dumped the same on the platform thereof, and which ■said platform is about six feet wide. The said case having been .■somewhat racked, weakened, and impaired by handling, during ■the time it was being transported, canted over, after reaching the platform, *and fell into the mnd and water below, and a portion of the contents of said box thereby became wet and damaged, •which was the only damage to said goods. That the drayman did not accompany the truck, nor did he in any way assist in dumping «aid box. That said box was dumped lengthwise of said platform, .and at least eighteen inches from the edge thereof. That there was no design on the part of the person who wheeled said box out of .■said warehouse to dump the same in the mud, or in any way to injure it. That it was wheeled and dumped in the usual way, and to the usual place for loading. That he tried all he could to save «aid box from falling, when he observed it to be canting over, but was unable so to do. That the said railroad company had posted ■up the following notice in the said depot or warehouse, to wit: ‘All ■charges on freight must be paid on the delivery of the goods. All .goods and merchandise will be at the risk of owners while in the company’s storehouse.’ Signed E. B. Phillips, Superintendent. It is agreed that the goods aforesaid were of value, and that if under the facts aforesaid the court should be of the opinion that the defendant is liable, then judgment is to be entered for plaintiffs, for the amount of the verdict before the justice, with interest; otherwise judgment to be rendered for the defendant. It is agreed that the above statement is made and shall be used only for the purpose of the present trial in this court, at the election of either party.”
    The parties joined issue, in the court of common pleas, by petition and answer; and the issue presented the question as a foun-dation of the plaintiffs’ right of recovery, whether the damage to the goods was attributable to the negligence of the railroad company or not.
    In the court of common pleas the intervention of a jury was-waived, and the issue joined between the parties submitted to the ■court upon the'foregoing agreed statement of facts; and the court found in favor of the plaintiffs below, and entered judgment accordingly, after overruling *a motion for a new trial, predicated upon the grounds that the finding was against the evidence and the law.
    To reverse this judgment, the railroad company filed, in the district court, a petition in error, which was reserved for disposition in this court.
    
      
      Mason & Fstep, for plaintiffs in error.
    
      Charles Gr. Finney, Jr., for defendants in error.
   Bartley, O. J.,

held:

The issue in the cause presents a question of negligence as the foundation of the plaintiff’s right of recovery, and a jury having, been waived, the court have found for the plaintiffs on the issue made, and judgment has been entered thereon, and the cause coming up on a petition in error, founded on an agreed statement of the facts, but omitting a statement whether there was negligence or not, this court can not find that fact contrary to the finding of the court below, the question whether there was negligence or not being not a question of law merely, but a question of fact, to be found from the testimony.

Had the parties proceeded, under the 280th section of the code,, with a view of excepting to the decision of the court below, upon the questions of law involved in the trial, it would have been the duty of the court to state, in writing, both the conclusions of fact and the conclusions of law, separately.

Judgment of the common pleas affirmed*

Swan, Brinkerhoee, Soott, and Sutliee, JJ., concurred.  