
    WILLIAM B. CANFIELD, et al, Respondents, v. THE BALTIMORE & OHIO R. R. CO., Appellant.
    
      Judge's charge—error in, when not cured by subsequent cha/rge.—Gortmwn carrier.—Burden of proof.
    
    Where the court erroneously charges the jury, as matter of law, that a certain material fact is as contended by plaintiff, such error is not cured by a subsequent charge, made upon request of defendant’s counsel, to the effect that the burden of proof is on plaintiff to show the said fact to be as claimed by him, and that on the evidence in the case it is a question for the jury whether it is so or not, and if they believe such to be the fact, they will find, &e.,—the original charge in that regard not having been withdrawn.
    In an action against a common carrier for loss of goods, alleged to have occurred by the negligence of the carrier, the burden of proof as to the delivery of the goods is on the plaintiff.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    
      Decided June 18, 1880.
    Appeal from a judgment entered on a verdict in favor of the plaintiffs, and from an. order denying defendant’ s motion for a new trial, The facts appear in the opinion.
    
      Hutchins & Platt, attorneys, and Austin G. Fox and Waldo Hutchins, of counsel, for appellant, among other things, urged :
    The misdirection in regard to the presumption of law as to the delivery of the goods requires a reversal of the judgment. I. An erroneous instruction in regard to a presumption of law is cause for a new trial (Hilliard on New Trials [2 ed.], 306, § 62; 1 Best on Evid. [Wood’s Am. ed.] § 304; Hollister v. Johnson, 4 Id. 639 ; Glover v. Duhle, 19 Mo. 360; Holliday v. Atkinson, 5 B. & C. 501; Graves v. Colwell, 90 Ill. 612, 618).
    II. The error in the misinstruction was not cured by any subsequent instruction. 1. The court did not withdraw or modify the misinstrnction. It laid down the erroneous rule in explicit terms, adding that, “ the case, being considered a very close one, the court had some hesitation in coming to that conclusion.” The next sentence is “They have, however, said that the evidence justified the finding that they were delivered to the defendants.” Here is no qualification or withdrawal of the erroneous rule which the court of appeals was represented as laying down with hesitation. The jury were instructed that the court came to the conclusion, and whether with hesitation or not, is of no importance. But the next sentence shows how the court understood its instructions: “The defendants took the goods into their possession.” Again, the court left it to the jury to determine whether the goods were “stolen while in the possession of the defendants, the Baltimore & Ohio Railroad Company, or while in the store No. 15 Maiden Bane,” excluding an inquiry into the question whether the goods were stolen while in the possession of the plaintiffs’ carman on the way from De Wolff’s store to the defendant’s station. 2. The error was not cured by the charge of the eighth proposition submitted by the defendants. The court charged there that the burden of proof was on the plaintiffs to show “ that the missing goods were in the box when it was delivered to the defendants at Washington.” But under the instruction of the court, when the plaintiffs had proved that the goods were in the box when it left the store, and that there were no suspicious circumstances attending its transportation to the defendant’s station, the plaintiffs’ had sustained the burden, and the law stepped in with the presumption that the goods were delivered. 3. The error in question was not cured by the charge of the court on the first or second proposition submitted by plaintiffs. The court charged that on the evidence it was a question of fact for the jury whether the missing goods were delivered to the defendants at Washington, but the previous instruction remained that when the plaintiffs had proved certain facts, they could rely on the presumption of law that the goods were delivered. The whole charge is to be read together, and at the end of each proposition charged on the subject, this erroneous construction can be read: “but the court of appeals has said that there being no suspicious circumstances attending those goods on their way from De Wolff’s to the depot, the presumption of law is that the goods were delivered.” 4. Assuming, but not conceding, that the plaintiffs’ view of the subsequent instructions is correct, and that such instructions were contradictory of the one in question, still the error was not cured. It-has been shown already that there was no contradiction, and that there was no withdrawal of the misinstruction. Where the court lays down two contradictory rules for the guidance of the jury, one of which is correct and the other is erroneous, there is error, for it is impossible to say which rule the jury followed. (Chidester 
      v. Cons. People’s Ditch Co., 53 Cal. 56 ; Imhoff v. Ch., M. & St. P. R. R. Co., 20 Wis. 344, 347; Adams v. Capron, 21 Md. 186, 206; B. & O. R. R. Co. v. Blocher, 27 Md. 277, 286; Southern R. R. Co. v. Kendrick, 40 Miss. 374, 388; Vanslyck v. Mills, 34 Iowa, 375 ; Catawissa R. R. Co. v. Armstrong, 49 Penn St. 186, 193). 5. The only way in which the court could obviate the error was to withdraw the erroneous charge in such explicit terms that the jury could not possibly be misled (Chapman v. White, 55 N. Y. 579 ; Allis v. Leonard, 58 Id. 288). If the misdirection may have influenced the verdict, a new trial will be ordered (Greene v. White, 37 N. Y. 405; Beaver v. Taylor, 1 Wall, 637, 644).
    
      Estes & Barnard, attorneys, and Benjamin Estes, of counsel, for respondent.
   By the Court.—Freedman, J.

The action' was brought to recover the value of certain jewelry and silver plate which the plaintiffs alleged they delivered to the defendant in a box, at Washington, D. C., to be carried to New York, but which, through the defendant’s alleged negligence, were abstracted from the box while in the custody of the defendant.

Upon the trial it was admitted that on May 13, 1872, at Washington, the defendant received from the plaintiffs, for transportation to New York, eighteen boxes and one barrel, and that these packages arrived in New York and were delivered to the plaintiffs’ consignees, Sackett, Davis & Co. The- contested questions of fact were : 1. Whether the missing goods were contained in one of the boxes at the time of their delivery to the defendant for transportation; and, 2, if they were, whether they were abstracted therefrom before the duty of the defendant for their safe-keeping had ended. Upon both these questions the burden of proof was upon the plaintiffs.

A former verdict in favor of the plaintiffs was set aside by the court of appeals (75 N. Y. 144), on the ground of error in the charge, and for the further reason that, although there was sufficient evidence to authorize the jury to find that the missing goods were delivered to the defendant at Washington, the whole evidence, in the absence of proof showing what care was taken by plaintiffs’ consignees of the box alleged to have contained the goods, after its arrival in New York, was as consistent with the loss of the goods after delivery to plaintiffs’ consignees at New York, as with their loss while in the defendant’s custody.

Upon the last trial, the plaintiffs sought to obviate the defect in the proof by showing not only that all the packages were safely carried from the landing place in New York to the store of Sackett, Davis & Co., and that within a few days thereafter the goods in controversy were found missing from one of the boxes, of which immediate notice was given to the defendant, but also, that, while at said store, all the boxes were kept and guarded in such a way that the missing goods could not well have been abstracted there. Upon an examination of the evidence bearing upon this point, which is quite voluminous, I think sufficient care was shown to carry the case to the jury.

Upon the question, however, whether the missing goods were contained in one of the boxes at the time of their delivery to the defendant for transportation, the jury were instructed that upon the evidence adduced the presumption of law was that they had been thus delivered, and that under the ruling of the court of appeals the evidence was sufficient to justify them so to find. In this the learned judge below erred. The evidence was substantially the same as upon the trial which was reviewed by the court of appeals, and all that that court decided with regard to it was, that it permitted the jury to find a delivery. This conclusion was reached with some hesitation. But the court did not hold that upon a re-trial the jury should be deprived' of the privilege of considering the weight and credibility of the evidence. Under this ruling the question of delivery should have been submitted as an open one, and the jury should have been left free to determine it upon their own view of the true weight to be given to the evidence which bore upon it. True, the learned judge below, upon the conclusion of the charge, in response to specific requests, added that the burden of proof was on the plaintiffs to show both that the missing goods were in the box when it was delivered to the defendant at Washington, and that they were not in the box when the box was delivered to Church, the carman, at New York ; and also, that on the evidence in the case it was a question of fact for the jury whether the missing goods were delivered to the Baltimore & Ohio Railroad at Washington, and if they believed such to be the fact, that they should'find that they were so delivered. But these additional instructions did not cure the error alluded to. They did not withdraw or modify the prior erroneous statement as to the presumption of law and the sufficiency of the evidence, as matter of law, to establish the fact, and the jury were thus left under the impression that after all the plaintiffs had sufficiently established the delivery of the missing goods.

The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.

Curtis, Ch. J., and Sedgwick, J., concurred.  