Pavitt v. Lehigh Valley R. R.

Citations

• 153 Pa. 302
• 25 A. 1107
• 1893 Pa. LEXIS 1097

Syllabus

<p>Railroads — Common carriers — Bill of lading — Deviation from contract— Notice of claim — Public policy — Fraud.</p> <p>If a railroad company deviates from a contract to transport live stock by shipping it by freight service instead of passenger service as agreed upon, and the stock is injured by the delay and rougher service, the company cannot avail itself of the stipulations in the contract relieving it from liability as insurer at common law; but such deviation does not relieve the shipper from notifying the company of his claim for damages within five days, where the contract, provides for such notice.</p> <p>The reason for the rule holding the carrier to the common law accountability is public policy to prevent fraud on the shipper. While the reason for the rule would sweep away every stipulation of the contract in derogation of the duty imposed on the carrier, it has no application to a provision referring to an act on the part of the shipper subsequent to delivery — such provision being for the protection of the carrier against fraud on the part of the shipper. To abrogate such provision would open the door to fraud.</p> <p>Practice — Trial—Failure to charge on evidence — Appeal.</p> <p>In such a case the Supreme Court will not sustain a verdict for a shipper who has failed to give notice within the time required by the contract, even where there is evidence of waiver of such notice by the company, if it appears that no point was presented by plaintiff on the question of waiver, and the charge of the court contained no allusion to it; but a new venire will be awarded.</p>