
    Shoemaker v. Adams Express Company, Appellant.
    
      Carriers — Express company — Contract—Negligence—Presumption— Order of proof — Evidence—Discretion of court.
    
    1. In an action against a common carrier to recover damages for injuries to a horse where the plaintiff proves the delivery of the horse to the carrier, and its injury, and the defendant offers in evidence a special contract limiting liability, except for its own negligence, and follows this by proof to rebut the presumption of negligence, the trial judge cannot be convicted of abuse of discretion by permitting the plaintiff to introduce evidence to show that the defendant was negligent in the care of the horse.
    
      Carriers — Notice of claim — Waiver—Evidence.
    2. Where a shipping contract provides that the carrier shall not be liable for loss or damage, unless the shipper shall give written notice of a claim therefor within thirty days, and it appears that the carrier's local and district agents had knowledge of the injury within a few horns after it occurred, and subsequently agreed to pay the claim if the carrier was not shown to be negligent, the carrier will be deemed to have waived formal notice in writing.
    3. In an action against' a carrier where the contract provides for notice of injury within thirty days of its happening, and the plaintiff alleges that he was not able to secure a copy of the contract on which the goods were shipped, and introduces a blank form of contract alleged to be the only form used by the company and showing that ninety days’ notice was required, the admission of such form is harmless error, where the court, in its charge, explicitly instructs the jury that if the plaintiff did not give notice of his claim within thirty days from the time of the loss, he could not recover unless the defendant had waived its right to insist on that stipulation.
    4. In an action against a carrier for injuries to a horse alleged to be caused by the negligent turning of steam into the car in which the horse was being transported, the case must be submitted to the jury where there is some evidence of the defendant’s negligence although the preponderance of evidence is to the contrary.
    
      Practice, C. P. — Trial—Improper remarks of counsel — Continuance.
    5. A verdict and judgment for the plaintiff in a case against a carrier for injuries to a horse shipped under a special contract, will not be reversed because the counsel for the plaintiff said to the jury that it was customary for corporations to insert some things into a contract which the law did not permit, and the court refuses to withdraw a juror, if it appears that the judge warns the jury to disregard the remark, and the verdict for the plaintiff is of such small amount that the jury was obviously not prejudiced by the remark of counsel.
    Argued May 6, 1912.
    Appeal, No. 71, April T., 1912, by defendant, from judgment of C. P. Cambria Co., March T., 1910, No. 592, on verdict for plaintiff in case of E. P. Shoemaker v. Adams Express Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Trespass for injuries to a horse. Before O’Connor, P. J.
    At the trial counsel for plaintiff proposed to prove by a witness on the stand that he was in the car with the horses shipped from Carrolltown on September 11, 1909, among which was the mare known as Alta W., owned by the plaintiff in this case, — E. P. Shoemaker; that he was seated in the car between the heads of the horses at one end of the car; that he saw the mare, Alta W., become excited after leaving Carrolltown Road Station; that her excited condition was caused as a result of her being swung against the side of the car where the bare steam pipes were exposed; that as the mare touched the steam pipes she jumped to the side in an excited condition and at each time that the car swung the mare was thrown against the pipes and she would jump back again, becoming excited, and finally as a result of this excitement threw herself and was injured; that as the mare stepped toward the steam pipes a noise as of escaping steam was heard, and he observed vapor or steam where the pipes were located; that the floor in the stall became wet; that between stops made by the train on the trip, something was done by the trainmen and as a result of which the car seemed to cool and the mare quieted, and that she rode from there to Cresson in a quiet condition where she was removed; that the injuries that resulted to the mare in the car were caused by her becoming excited when thrown against the side of the car by the swinging of the train and that she threw herself in her excitement and was injured. This is offered for the purpose of showing the negligence on the part of the express company in permitting heat or steam in the car in which the horses were being shipped, and in rebuttal of the testimony on part of the defendant company that it was not negligent.
    Defendant’s counsel objects to the proposition of the plaintiff for the reason that under the pleadings in this case, it should have been introduced in chief and is therefore not rebuttal; that the offer does not contain any proposition which would show that defendant was negligent in any manner.
    The Court: Under the authority of Nemcof v. B. & O. R. R. Co., 39 Pa. Superior Ct. 542, we hold that after property is received by a common carrier the burden is on the defendant to prove that it was not injured while in its custody. We therefore overrule the objection, note an exception, and seal a bill for the defendant company. [1]
    E. P. Shoemaker was offered as a witness.
    Counsel for the defendant company requests that the purpose of the offer be stated.
    Mr. Evans: We propose to prove by the witness that he talked with a representative of the express company as to a settlement of this claim and was advised that the claim would be settled if it were not for one thing; that they investigated it and that the result of that investigation showed no heat to be in the car; if it were not for that fact they would settle the claim.
    Defendant’s counsel objects to the proposed testimony for the reason that the contract under which the plaintiff shipped his horse expressly states that the conditions of shipment in regard to giving notice cannot be waived except in writing, and it being clear and unambiguous it would be waived improper to permit the introduction of testimony to change the terms of the contract.
    The Court: Objection overruled, an exception noted and bill sealed for the defendant company. [2]
    A. M. Shoemaker, attorney for plaintiff, was asked this question:
    “Q. What did you ask them for at the Adams Express Company’s office here (Ebensburg)?”
    Mr. Storey for defendant objected for the reason that the express office at Ebensburg would not have the contract and would not know what the contract was made at Carrolltown and further objected to as being immaterial and irrelevant.
    Mr. Evans: We propose to follow the question by showing by the witness that he was assured by the Adams Express Company that this was the only form of contract which they used, therefore, it would be material.
    Mr. Storey: It is further objected as improper and inadmissible for the reason that the contract itself expresses clearly and without ambiguity what the contract was.
    The Court: Objection overruled, an exception noted and bill sealed for the defendant company. [3]
    Mr. Evans: “Q. The copy of form of shipping contract received by you from the express company stated that notice of claim should be made within ninety days. State whether or not notice of this claim was made within ninety days?”
    Mr. Storey: It is objected for the reason that this is an attempt to change the terms of the contract made between the parties and is incompetent and inadmissible.
    The Court: For the present we will overrule the objection until we come to consider the question.
    
      “A. I served two written notices within ninety days on the express company. Q. Where at? A. The first one at Johnstown and the second one at Carrolltown. After serving the notice at Johnstown and thinking it wouldn’t possibly be sufficient under the terms of the contract, I served written notice within ninety days at Carrolltown because the contract stated that the notice of claim ‘shall be presented to it in writing at this office.’ ”
    Offer in evidence copy of form of contract identified by the witness and furnished him by the agent of the express company.
    Mr. Storey: Objected to as being inadmissible for the reason that it is changing the terms of the contract between the parties, which contract is now in evidence.
    The Court: For the present we will overrule the objection and consider the matter all together, note an exception and seal a bill for the defendant company. [4] Motion to continue by Mr. Storey: Counsel for defendant company moves the court to withdraw a juror and continue the cause, for the reason that the counsel for the plaintiff, in this closing address to the jury, in describing the question of notice, said that it was customary for corporations to insert some things into their contracts that the law will not permit, which is entirely unjustified and improper.
    Mr. Evans: In answer to the statement of counsel we say that we stated to the jury that common carriers do insert in their contracts provisions which the court will not sustain, which is in evidence in this case.
    The Court: We are not of the opinion that the remark of counsel is calculated to prejudice the defendant to the extent of warranting a continuance of the case; we decline to withdraw a juror and continue the case. We note an exception and seal a bill for the defendant company. [5] Defendant presented this point:
    5. That there is not sufficient evidence that there was any steam turned into this car to submit to the jury, and the verdict must be for the defendant. Answer: We deny the point and submit that question to the jury. [9]
    Verdict and judgment for plaintiff for $504.50. Defendant appealed.
    
      
      Errors assigned were (1-5) rulings on evidence, quoting the bill of exceptions; (9) above instructions, quoting them.
    
      H. W. Storey, for appellant.
    — Plaintiff must prove all the material points of his case before defendant’s testimony is put in, and he cannot introduce proof of such points afterward in rebuttal: Kohler v. Wells, Fargo Co., 26 Cal. 606; Fitzpatrick v. Papa, 89 Ind. 17; Manning v. Ry. Co., 64 Iowa, 240 (20 N. W. Repr. 169); Shearer v. Middleton, 88 Mich. 621 (50 N. W. Repr. 737).
    A case should not be submitted to the jury where the evidence is so insufficient that the court ought not to sustain the verdict: Gardner v. McLallen, 4 W. N. C. 435; Angier v. Eaton, Cole & Burnham Co., 11W. N. C. 146.
    
      John E. Evans, with him Alfred M. Shoemaker and Chas. S. Evans, for appellee.
    — The maimer of introducing testimony will not be reviewed by the appellate court'unless there is a very gross abuse of discretion by the court below: Dosch v. Diem, 176 Pa. 603; Leh v. R. R. Co., 30 Pa. Superior Ct. 396; Howard v. American Express Co., 47 Pa. Superior Ct. 416; Eckert v. Penna. R. R. Co., 211 Pa. 267.
    Appellate court will not reverse on account of improper remarks of counsel when verdict is not excessive and the jury is instructed to disregard statements: Moore v. Neubert, 21 Pa. Superior Ct. 144; Shaffer v. Coleman, 35 Pa. Superior Ct. 386; Behrens v. Mountz, 37 Pa. Superior Ct. 326.
    July 18, 1912:
   Opinion by

Henderson, J.,

This is an action of trespass brought by the plaintiff to recover damages for injury to a race horse delivered to the defendant for shipment and which was injured, as was alleged, because of the defendant’s negligence. The plaintiff proved the delivery of the horse to the carrier in good condition and that when taken from the car at Cresson it was found to be badly injured and, after offering evidence as to the amount of damage, rested. This made out a prima facie case for the plaintiff. The defendant thereupon offered in evidence a contract for the transportation of the horse in the form commonly known as a Live Stock Limited Liability Contract. After this evidence was admitted witnesses were called to prove the circumstances under which the horse was hurt, to rebut the presumption of negligence, the defendant’s evidence tending to show that the horse became excited in the car and had what some of the witnesses called a “.car fit.” To this the plaintiff replied with testimony intended to show that there was a steam radiator in the car at the side of the stall in which the plaintiff’s horse was tied; that steam was turned onto this car; that the motion of the train threw the horse against the radiator, burning it, and that the pain and fright thereby produced caused the horse to plunge and kick and throw itself several times and that the cause of the injury was the heated radiator.

The first assignment of error relates to the burden of proof, the appellant contending that the court reversed the logical order and compelled it to assume the affirmative of the issue. This manner of procedure was brought about, however, by the voluntary introduction of testimony in behalf of the defendant as to the history of the accident. If the defendant had rested with the offer of the special contract under which the shipment was made, the burden would have rested on the plaintiff, as there was at that time no evidence for the plaintiff showing that the accident occurred by reason of any injury to the agencies of transportation or through the negligence of the defendant, and the presumption of negligence arising from the fact of the injury had been waived in the contract. When a special agreement is entered into between the shipper and the buyer this supplants the common-law liability except as to the carrier’s negligence and the agreement becomes the law of the case between the parties. The right of a carrier to limit his liability except for Ms own or Ms servant’s negligence has been-decided by "many cases. He may become a limited insurer by a special acceptance of the goods and is relieved from the conclusive presumption of negligence wMch exists where an accident occurs that is not inevitable. If, therefore, the defendant had followed the procedure adopted in Penna. R. R. Co. v. Raiordon, 119 Pa. 577, it would have been entitled to binding instructions unless the plaintiff had replied by proving negligence. Having elected, however, to introduce all of the testimony for the defense at one time the defendant cannot now complain that the proper order was inverted. It was the introduction of the contract by the defendant which sMfted the burden, but the defendant was not bound to rest at that point. All of its evidence going to relieve it from liability might be admitted and as no objection was offered was properly admitted by the court. The issue as to the accident was narrowed down to the inquiry whether steam was turned on from the locomotive into the radiator of the car and whether by reason of the heat in the radiator the horse was burned and frightened and thus injured itself, and on this point the evidence was full, clear and direct on the defendant’s side of the case. We cannot say, therefore, that there was any abuse of discretion by the trial judge in the order of trial.

The second assignment relates to waiver by the defendant of notice of the injury provided for in the contract. A witness was called to prove a conversation with agents of the express company having the subject in charge as to their knowledge of the fact of the accident and as to a settlement of the case. The contract provided that the defendant should not be liable for any loss or damage uMess the sMpper should witMn thirty days after such loss or damage occurs give notice in writing of his claim therefor to the company. The testimony referred to was offered to show knowledge of the injury, that a claim was made and that no objection was made on account of the lack of the formal notice in writing. The provision for notice was for the protection of the carrier and could be waived as was held in Pavitt v. R. R. Co., 153 Pa. 302, and there are many cases which hold that where an insurer received without objection notice of a loss not exactly in accordance with the contract in form or as to time and denied liability for other reasons than the insufficiency of the notice he will be deemed to have waived such informality: Eckert v. Penna. R. R. Co., 211 Pa. 267. The evidence offered shows that the defendant’s local and district agents were in possession of knowledge of the condition of the horse and the alleged injury within a few hours after the accident. As the purpose of the notice is to enable the carrier to investigate the merits of the case while the recollection of witnesses is distinct and their evidence can be procured, the defendant in this case was not prejudiced by lack of the notice which was in technical compliance with the contract and the evidence tends to show that the refusal to pay was because the company denied that the radiator was hot and that the horse was burned or frightened thereby. The evidence was admissible under the authorities referred to.

The third and fourth assignments relate to the admission of a blank form of contract obtained from one of the plaintiff’s attorneys from the agent of the defendant at Ebensburg. This contract was not admissible as it was not the same form which was used in the shipment of live stock and was not a copy of the contract existing between the plaintiff and defendant. The purpose of its introduction was to show that ninety days was the time limited within which notice of the claim of loss must be made. The plaintiff offered testimony to show that he was unable to procure a copy of the contract which he had delivered to the plaintiff.. Application to various agents of the company had failed to afford him a copy of that instrument. An attempt was therefore made by the introduction of this blank contract to show that it was the only form in use and that ninety days were allowed within which to present the claim. But no prejudice resulted to the defendant from the admission of this form, for the court directly and explicitly charged the jury that if the plaintiff did not give notice of his claim within thirty days from the time of the loss he could not recover unless the defendant had waived its right to insist on that stipulation. And this was in exact accord with the contract.

The ninth assignment is that which was most strongly pressed at the argument and which the learned counsel for the appellants stated to be the principal point in the case. The court was asked in the fifth point to instruct the jury that there was not sufficient evidence that any steam was turned into the car to support a verdict for the plaintiff. This point was refused. We have examined the evidence with care and while there is a great preponderance of testimony in support of the proposition presented in the point we cannot say that there is no evidence to the contrary. The testimony of William Smyers, William Kunkle, Harper Williams and perhaps one or two other witnesses would support the allegation that there was steam in the radiator and the witness first named said the horse had the appearance of having been burned. The case was not so clear, therefore, that the court could with propriety have taken it from the jury. The learned judge refused a motion for a new trial and we are not persuaded that there was any abuse of discretion in so doing.

The only remaining point necessary to be considered is the fifth assignment which complains of the refusal of the court to withdraw a juror because of improper remarks made by the plaintiff’s counsel. In his closing address to the jury the declaration was made that it was customary for corporations to insert some things into their contracts which the law did not permit. The court was of the opinion that this remark was not calculated to prejudice the defendant and therefore declined to withdraw a juror. The jury was directed, however, to disregard the remark and to dispose of the case in accordance with the evidence produced and the law as stated by the court, and when we consider the verdict rendered it is apparent that it was not the offspring of prejudice, for the evidence would have authorized a much larger verdict. One of the defendant’s witnesses placed the value of the horse before the injury at $1,000 and the only value placed on it after the injury was $150. We are not persuaded that the discretion of the court was abused or that the defendant was in anywise prejudiced as to this feature of the case: Shaffer v. Coleman, 35 Pa. Superior Ct. 386. On the whole case we are of the opinion that the judgment should be sustained.

Judgment affirmed.  