Opinion
November 1, 1934.
December 18, 1934.
Negligence — Generally — Loading of machine — Evidence.
In an action of trespass to recover for damage to a machine purchased from the defendant, a finding of the trial judge that defendant had not properly fastened the machine to skids in loading it on the truck of a common carrier for delivery to the plaintiff, and that the defendant shipper was liable, was sustained on appeal.
Appeal No. 58, October T., 1934, by defendant from judgment of M.C., Philadelphia County, February T., 1932, No. 797, in the case of David E. Kennedy, Inc. v. Frank L. O'Brien et al.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.
Trespass for damage to personalty. Before GABLE, J.
The facts are stated in the opinion of the lower court, GABLE, J., as follows:
Plaintiff had purchased from O'Brien Machinery Co., one of the defendants, a planing machine for $275, and it was arranged that the Royal Freight Lines, Inc., the other defendant, was to haul the machine from O'Brien Machinery Co. to plaintiff's place of business. The Royal Freight Lines, Inc., called at the place of business of the O'Brien Machinery Co. and was instructed to go to another plant where the machine was stored, and there the employees of the O'Brien Machinery Co. loaded the planer on the truck of the Royal Freight Lines, Inc. When the machine arrived at the plaintiff's plant in Brooklyn, one of the legs of the machine had pulled loose from the skids and the machine had fallen over to one side, and the machine broken and damaged. The action was brought against both the O'Brien Machinery Co. and the Royal Freight Lines, Inc., alleging negligence in loading the machine and in hauling it.
From the evidence, the judge sitting without a jury was justified in finding that the machine was not properly fastened to the skids and loaded on to the truck of the Royal Freight Lines, Inc. Therefore, the common carrier, the Royal Freight Lines, Inc. was not liable for any damage, but the shipper, the O'Brien Machinery Co., was the wrong doer.
The motion for a new trial and for judgment n.o.v. are refused.
The court found for plaintiff and against defendant, machinery company, and judgment was entered on the findings. Defendant appealed.
Error assigned was refusal of judgment n.o.v.
Raymond A. White, Jr., for appellants.
Jos. A. Keough, of Levi Mandel, for appellee.
Argued November 1, 1934.
The judgment is affirmed on the opinion of Judge GABLE.