Baltimore & Ohio Railroad v. Schumacher ex rel. Myers

Stewart, J., delivered the opinion of the court. The appellant, in the first exception, complains of the action ¹⁷⁵ of the court below, in granting the appellee’s fifth prayer, and in the second exception, in rejecting its third, fourth, sixth and seventh prayers. The fifth prayer of the appellee, although somewhat peculiar in its structure, did not require the jury to find what was thfe opinion of the court, as was contended by the appellants’ counsel, but upon the theory that the judgment of the court, as to the law, was as stated therein, upon the assumption that the appellant had ceased to be liable as a common carrier, and had become responsible for the proper custody of the oil as warehouseman and forwarder, — substantially asked the instruction to the jury, that the appellant, under such circumstances, in its character as warehouseman and forwarder, was bound for ^ordinary care and diligence over the oil in question, such> as a prudent man would exercise over his own property of like nature; and that such care should be in proportion to the loss likely to be sustained, by want of such care. We see no objection to the standard of diligence prescribed therein.

Such care was incumbent on the appellant, as the character of the property entrusted to it required, and such as was properly adapted to its due protection and preservation. “ What constitutes ordinary diligence may also be materially affected by the nature, the bulk, and the value of the articles. A man would not be expected to take the same care of a bag of oats as of a bag of gold; of a bale of cotton, as of a box of diamonds. The value, especially, is an important ingredient to be taken into consideration upon every question of negligence. The degree of care which a man may reasonably be required to take of any thing, must essentially depend upon the quality and value of the thing.

The bailee ought to proportion his care to the injury or loss which is likely to be sustained by any improvidence on his part.” Story on Bailments, sec. 15; Redfield on Railways, 253, 282, 435, 436; Pierce on Railroads, 448. Objection was also urged against that portion of the prayer, instructing the jury that if they believed from the evidence, “ that the defendant did not protect the oil in question from the action of the sun, and use other means in the mode usually adopted,” as an improper assumption on the part of the ¹⁷⁶ court, as to a matter of fact exclusively within the province of the jury. If there were any force in this objection, special exception ought to have been taken thereto, under the Act of 1861-2, ch. 154, before we could overrule the action of the court below on that account — we discover, however, no validity in this objection. The court does not instruct the jury that the “ action of the sun ” would injure the oil, or that it required protection therefrom, but the purport of it was, that if the jury found the oil did require protection from the action of *the sun, and the appellant was guilty of neglect in taking proper care of it in this particular, and use of other means for its preservation, such conduct made it liable for the consequential damage.

In the refusal of the appellant’s third, fourth, sixth and seventh prayers, in the second exception, we see no error. The court below properly refused the appellant’s third prayer, amongst other reasons, because it erroneously assumed that •there was evidence legally sufficient to go to the jury, to show that it was customary to leave oil, as an offensive article, to be stored with other goods exposed in the-open air. Besides, the prayer was objectionable for the further assumption on the part of the appellant, that there was no evidence offered to prove that the appellant was aware of the character of the oil, when there was testimony on that subject to bring to the knowledge of