The opinion
Dissenting Opinion by
Kelleb, P. J.:
I feel obliged to enter my dissent.
It seems to me clearly established by the testimony that the suffocation and death of eighty of plaintiffs' hogs was due to the collapse of the floor of the superstructure, built on defendant’s motor truck by the plaintiffs’ agents, at their request, in order to permit them to ship more hogs than could be hauled in defendant’s truck; that defendant had nothing whatever to do with suggesting, ordering, building or accepting the superstructure, or loading the hogs upon it; and he received no compensation whatever for the extra weight thus hauled by his driver; that all of these things were the responsibility of the plaintiffs or their agents.
That the collapse of part of the floor of the superstructure, thus precipitating some of the hogs loaded upon it onto the hogs loaded in the truck proper, resulting in the suffocation and death of eighty of them was due to some weakness or defect in the construction of the superstructure must be the reasonable and logical inference rather than the acceptance of the suggestion of improper driving of the truck, based wholly on a chance remark of the driver that “the road was a little rough.” It was Highway Route No. 13, the direct route from Elizabeth City, North Carolina, to Philadelphia, via Wilmington; and to ascribe the collapse to improper driving because of that remark, rather than to faulty construction or overloading of the superstructure is to my mind wholly unreasonable.
If the instrumentality which caused the death of these hogs had been the defendant’s, the burden would have rested on him to show that its collapse was not due to
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faulty construction or other cause chargeable to him— but it was not; it was the plaintiffs’, and before they could hold the defendant responsible for its collapse, they were obliged to show that it was properly built of substantial materials capable of carrying the load they placed upon it.
Defendant’s driver had a right to assume that plaintiffs had built a superstructure capable of safely transporting the hogs loaded upon it. It was not his duty to inspect or approve it.
The
truck itself
was not injured in any manner by the trip — only the superstructure. What
plaintiffs
did with the superstructure does not appear in the record. When
defendant
arrived in Philadelphia, after his driver’s arrest, the superstructure was gone.
Sam Villari, the head of the plaintiff firm, and his witness, who built the superstructure, were both in court and testified, but they failed to give any testimony whatever showing the soundess of the super-imposed construction.
The authorities cited by the court below and by the appellees do not support this judgment. They do not hold the carrier responsible for loss to animals shipped by a plaintiff, occurring through the breaking or collapse of a facility or means of transportation supplied by the shipper himself.
For instance in
Blackburn v. Adams Express Co.,
43 Pa. Superior Ct. 276 , affirmed in 230 Pa. 635 , this court said: “Unless the evidence tended to show that the
loss was a consequence of some wrongful act of the defendant,
the plaintiff had no cause of action.”
Inspection of the hogs on the way, after the collapse of the floor, would not have saved the loss. What practical means of avoiding loss, could the driver have taken at night, in the dark, after the collapse? The loss was the consequence of the collapse of plaintiffs’ superstructure.
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In
Penna. R. R. Co. v. Raiordon,
119 Pa. 577 , 13 A. 324 , Mr. Justice Williams, speaking for the court, said: “If, for any reason, an ‘injurious accident’ happens to, or by reason of,
that which the carrier provides for the transportation,
the law...... presumes the accident to be due to the want of that care and puts upon him the duty of successfully relieving himself from that presumption.” (Italics supplied) But this ‘injurious accident’ happened by reason of something which the
shipper
— not the
carrier
— provided for the transportation and the duty of showing that it was properly and aedquately built or constructed rested on the shipper, not the carrier.
Just how the eight hogs which were missing got away, the evidence does not show. It does not show how high the sides of the superstructure were, or how it was constructed — whether it was closely boarded up or spaces were left between the uprights or siding boards, if any. It was entirely open at the top. Eight of the hogs may have clambered on top of other hogs at the front end of the superstructure body, where the floor afterwards collapsed, and got away from the vehicle before the collapse came. But there is no evidence on the subject, and the defendant must be held liable for the eight missing hogs.
But, in my opinion, there is no evidence in the record which shows any wrongful act of the defendant, or his driver, which caused the collapse of the floor of the superstructure, and as the death of the eighty hogs was due to the collapse, the defendant cannot be held liable for their loss, and the plaintiffs must be held responsible for the loss resulting from the collapse of the floor of the superstructure provided by them.
Judge Rhodes and Judge James join in this dissent.