Gross v. Adams Express Co.

Citations

• 35 Pa. Super. 467
• 1908 Pa. Super. LEXIS 66

Syllabus

<p>Carriers — Common carriers — Negligence—Presumption—Special com tract.</p> <p>Where glass is carefully packed by a competent person, and delivered in good order for shipment to an express company, but is found to be broken when it reaches its destination, a jury may draw an inference of fact that the injury sustained was caused by the negligence of the carrier; and this is the ease, although the glass was shipped under a special contract by which the express company was to be liable only for its own acts of negligence.</p> <p>The injury in such a case, is evidence of negligence, but it is only evidence and the inferences are to be drawn by the jury. The plaintiff proves the facts from which the inferences are to be drawn, and thus meets the burden which is, in the first instance, upon him to establish the negligence of the defendant.</p> <p>Practice, C. P. — Commission to take testimony — Improper appearance, of counsel — Waiver of defect — Rules of court.</p> <p>Where the return of a commission to take testimony shows on its face that counsel for plaintiff appeared at the hearing while there was no appearance for defendant, the depositions taken under the commission will not be rejected at the trial, if it appears that no exception to the irregularity was filed by the defendant, under a rule of court, which required that specification of objections to the execution of a commission must be filed within ten days after notice of the return of the commission. The application of the rule of court in such a case is within the sound discretion of the court below, and will not be reviewed by the appellate court.</p>