
    PENNA. & N. Y. CANAL & R. R. CO. VS. WALTMAN.
    Where goods have been left on the platform of a railway depot the company is liable as a common carrier for their loss by fire.
    Where the 'goods have been taken into the dep'ot to await the owner’s convenience in removing them, the company is liable only on proof of its negligence.
    Error to Court of Common Pleas of Wyoming County. No. 244 January Term, 1878.
    This was an action of assumpsit against defendant to recover the value of goods received by it for transportation to Skinner’s Eddy. The evidence showed that the goods arrived at Skinner’s Eddy, and some were placed in the depot and the rest left on the platform. The depot was burned about 2 o’clock on the morning of November 26„ 1872, and the goods were destroyed. A freight train passed a few hours before throwing out more, and larger sparks than usual. Thei’e was rubbish and. paper under and around the platform, and kerosene had leaked out of barrels and saturated the boards of the platform. There was no watchman employed around the depot.
    The following is the charge of the Court by
    Ingham, P. J.:
    This is an action .brought by Thomas Waltman against the Pennsylvania and New York Canal and Railroad Company, to recover the value of goods which the plaintiff alleges he had shipped as freight on the said railroad, and which were never delivered to him. The evidence indicates that the goods of the plaintiff reached the depot of the company at Skinner’s Eddy, the place of their destination ; that one large box was left outside on the platform for the night, and the other goods placed inside the depot. We shall state to you the law which governs this case, leaving you to ascertain the facts from the evidence. A railroad company, as a common carrier, assumes the obligation to deliver the goods intrusted to them, and is bound to deliver them against all events, the acts of God and. of the public enemy alone excepted. If the goods ot the plaintiff, therefore, were destroyed by fire while they were in charge of the railroad “company as a common carrier, the plaintiff is entitled to recover the value of the goods so destroyed. It becomes necessary, therefore, to inquire when the liability of a railroad-'company as a common carrier ceases.
    To this we must answer, as the defendant requests us, that, where goods have been carried to their place of destination and there deposited in the carrier’s warehouse, to await the owner’s convenience in taking them away, the carrier is only subject, in respect to such goods, to the responsibility of warehousemen, not to that of common carriers. The owner.of goods delivered to a common carrier is bound to take notice of a usage to store them, on arrival at their place of destination in the carrier’s warehouse; and the carrier is therefore liable only as a warehouseman.
    Goods left upon the platform are not stored in the carrier’s warehouse ; and. it follows, therefore, that the railroad company is liable as a common carrier for the loss of such goods. As to the goods deposited in the depot, the railroad company incurred •the liability of warehousemen, and became responsible only for negligence or want of ordinary care.
    
      As to the burden of proof, the defendant requests us to charge—
    
      That the burden of proving want of good faith and of ordinary and reasonable care is on the plaintiff.
    On the subject of the burden of proof, it is held that in suits against a warehouse-man all the plaintiff has to do in the first instance is to prove that the goods were placed in charge of the defendant, and the non-delivery when called for ; then the burden is on the warehouse-man to show by clear and satisfactory proof, that the goods were lost or destroyed, and the manner of their loss or destruction : the burden then rests upon the plaintiff to prove negligence. And, if the jury are satisfied from all the evidence in the case that the railroad company, acting as warehouse-men, used reasonable care and diligence in their charge of the property of the defendant which was taken into the depot, and that the loss has not arisen from any default of theirs or of their servants, then the verdict as to those goods should be for the defendant.
    The defendant’s counsel have requested us to charge—
    
      Thai, the fact, if so, that the defendant had no watchman for their depot is not evidence of negligence as to their liability as warehousemen.
    To this we say that that is not of itself conclusive evidence of negligence, but may be considered as a circumstance, in connection with other circumstances, in deciding the question of negligence. If the circumstances surrounding the depot were such that a railroad company, exercising ordinary care and diligence for the safety of their own property and of the property of others intrusted to them, would employ a watchman then it would be negligence not to do so.
    There is evidence that the depot was close to the track of the railroad ; that around it and under the platform were such combustible materials as shavings, straw, paper and pieces of boards ; and that kerosene had leaked upon the platform ; there is also evidence that a freight train had passed down the railroad not long before the fire; and that the locomotive was pouring out sparks from its pipe, in a violent and unusual manner, and that this continued until after the train had passed Skinner’s Eddy. The plaintiff claims that this was the origin of the fire ; the defendants offer no testimony as to the origin of the fire. In the absence of any explanation as to the cause of the fire, the inference is a strong one that it originated from the locomotive.
    If the servants of the company running the engine of the freight train, did not use ordinary care, and if the fire was caused by their want of such care, the company is liable to pay the damages ; and further if the company failed to take such precautions to prevent their depot from getting on fire as men of ordinary prudence would take under the same circumstances, they are liable for the value of the goods destroyed. Would a person of common prudence, exercising ordinary and reasonable care, permit combustible materials' to accumulate around a building situated by the side of a railroad track, where trains are running night and day ? If so, would a person, in the exercise of ordinary and reasonable care, permit his servants to run a' freight .train past that depot, pouring out sparks in an unusual manner, with no watchman,around to look after fire ? If, in either of these respects,, the railroad company failed to use ordinary and reasonable care and diligence ; they are guilty of negligence, and must pay for the goods destroyed.
    These questions are for you to decide from the weight of evidence. The damages are the true value of the goods. A statement of the value of the goods, as the plaintiff claims to have proved them, will be sent out with you. No attempt has been made to rebut the testimony on this point; but you will take into consideration the items mentioned and the value fixed upon them by the witnesses, and give such weight to the evidence as you think it deserves.
    Decide the case impartially, and do not permit sympathy to sway your verdict; and do not allow your- verdict to be larger or smaller because a railroad company is concerned ; do justice impartially according to the law and the evidence.
    January 30, 1878, verdict for plaintiff for $1,113.50.
    The railroad company then took a writ of error complaining the answers to points and the charge.
    
      Felix Ansart, Esq. for plaintiff in error
    argued that the defendant was entitled to an unequivocal answer to the points. Hood vs. Hood, 2 Gr. 229; Carpenter vs. Mayer, 5 Watts 483.
    
      Where a carrier receives goods the burden of proof is on it to show their loss; Beckman vs. Shouse, 5 Rawle 179, but here plaintiff proved also the loss and was therefore bound to prove the want of care.
    
      Messrs. Little, Sittser avd Harding, contra.
    
   The Supreme Court affirmed the ruling of the lower Court on April 1st, 1878, in the following opinion :

Per Curiam.

The Court below appear to have disposed of this case correctly We cannot perceive any error to be redressed.

Judgment affirmed.  