The appeal

MCKEE, J., delivered the opinion of the Court. in this case comes from a judgment and order denying the motion of appellant for a new trial in an action to recover damages for the destruction of certain property of the respondent, by a fire caused as alleged by the negligence of the appellant and its employees, in conducting and managing its warehouse in which the property had been stored.

The case was tried by the Court with a jury, and a verdict was rendered against the appellant. If there was any evidence at all to warrant the verdict we cannot review it on appeal. It is conclusive upon us, not only on the question of negligence, but upon all the allegations in the complaint material to recovery in the action. (Algier v. Steamer Maria, 14 Cal. 172; Brown v. Brown, 41 Id. 88; Trenor v. C. P. R. R. Co., 50 Id. 232.) It is, however, contended that there was no evidence to sustain the verdict, and that the Court below erred in denying a motion for a nonsuit. But it was proved on the trial that the respondent had stored in the appellant's warehouse sixty-four bales of wool of a certain value per pound, which, on demand and tender of the storage due upon it, the appellant refused to deliver to the respondent, assigning, as a reason, that the warehouse and all it contained, including the wool of the respondent, except about three bales, which were returned to him, had been consumed by fire.

A prima facie case of negligence is made out against a warehouseman who refuses to deliver property stored with him, upon proof of demand and refusal. Upon such proof alone the burden is on him to account for the property, otherwise he shall be deemed to have converted it to his own use. But if it appears that the property, when demanded, was consumed by fire, the burden of proof is then on the bailor to show that the fire was the result of the negligence of the warehouseman. (Harris v. Packwood, 3 Taunt. 264; Beardslee v. Richardson, 11 Wend. 26; Brown v. Johnson, 29 Tex. 43; Lamb v. Camden and Amboy R. R. Co., 46 N. Y. 271; Jackson v. Sac. Val. R. R. Co., 23 Cal. 269.)

The negligence of the appellant, as the proximate cause of the loss of the property by fire, thus became the essential fact to recovery; and the burden of proof was upon the plaintiff in the action. It was incumbent on him to prove that the defendant had, by some act or omission, violated some duty by reason of which the fire originated; or that some negligence or want of care, such as a prudent man would take under similar circumstances of his own property, caused or permitted, or contributed to cause or permit the fire by which the property was destroyed.

Direct and positive evidence of negligence as a fact is not required. Any circumstances which tend to prove it, or from which it may be reasonably inferred, are sufficient. And when such evi

7 A. & E. R. Cas.-26

dence has been given on the trial of an action, it is not for the Court to usurp the disposition of the fact by ordering a nonsuit. Such an order should not be made, unless there is no evidence at all; or a mere scintilla of evidence wholly insufficient for the consideration of the jury, or unless the facts are agreed upon, or admitted, and in the judgment of the Court, are insufficient to constitute a cause of action. Upon facts admitted, or proved and found, it is the duty of the court to say what the law as applicable to them is. But where negligence, as the essential fact in the case, is disputed and the evidence of it is conflicting, or consists of circumstances from which inferences may be drawn for or against it, it is the province of the jury to determine, under proper instructions by the Court, whether the evidence establishes it as the prox imate cause of the injury complained of.

Judged by these rules, we are of opinion that the court below did not err in refusing to grant a nonsuit upon the evidence on which the plaintiff at the trial of the action rested his case. For the evidence tended to prove that the building, which was used as a warehouse and railroad depot, was in charge of two employees of the defendant in the action, one of whom was its local agent, and the other under him as a deputy warehouseman; that the latter was allowed to sleep in a bedroom cut off from the northern end of the warehouse, about fourteen feet square, the walls of which were constructed of upright red wood boards, about fourteen feet high, lined with cloth and paper. In this bedroom the deputy kept about half a dozen lamps for use at night, when necessary, in the warehouse. About five o'clock P.M. of January 5, 1876, the agent left the warehouse in charge of the deputy, whose duty it was to shut up the doors of the warehouse and fasten it up for the night." The deputy, himself, also retired to get supper; but, after supper, he returned to his bedroom to change his clothes for the purpose of visiting friends in the neighborhood. He lit one of the lamps and used it while he stayed in the room, for about half an hour; and, on leaving, as he says in his direct examination, "I turned down the lamp, blew it out, and set it on a little shelf in the room made for that purpose;" and, on cross-examination, "I think I extinguished my lamp and went away." In less than two hours after he had gone the warehouse was ablaze. Those whom the fire alarm first drew to the fire discovered it burning in the immediate vicinity of, or under the bedroom, and on looking into the room they saw the bed afire and the flames running up the partition walls of the room. There was also evidence which tended to show that the defendant had omitted to take certain precautions for extinguishing fire in case it occurred in the warehouse from accidental or other causes; and that if such precautions had been taken, the warehouse could have been saved on the occasion when it was destroyed with the property of the plaintiff.

In this evidence there was sufficient to warrant the Court in submitting the case to the jury. The inferences to be drawn from the circumstances connected with the origin and progress of the fire were not at all certain and incontrovertible. Differences of opinion as to them might reasonably exist in the minds of intelligent men, and in such cases, the circumstances are for the consideration of the jury and not of the Court. Therefore the Court did not err in overruling objections made to the admission of the evidence, which tended to prove all the circumstances connected with the origin of the fire, and the acts of precaution which the defendant and its employees had done or left undone to prevent its progress; nor was there any error in submitting the circumstances to the consideration of the jury. It was for them to determine from the circumstances how the fire originated-whether or not it happened from the use of the lamp or from accidental causeswhether the warehouseman used due care in respect to the lamp, its use, and extinguishment, and whether the defendant itself had taken reasonable precautions to prevent fire in its warehouse, and for controlling and subduing it in case it happened.

The Court may have erred in denying the defendant's motion to strike out the averment in the complaint, that "the defendant was the owner of and operated a railroad in the county," etc., but it was error without injury; for the fact that the defendant was in possession of the building and used it as a warehouse and depot in connection with its railroad, was proved in the case without objection; and it was inseparably connected with the evidence as to the use of the warehouse. We cannot, therefore, perceive how the averment of the fact in the complaint tended to "irritate and excite the prejudices of the jury against the defendant." There is nothing in the record suggestive even of the existence of such prejudices; and nothing to overcome the presumption that the verdict was a fair expression of judicial opinion warranted by the evidence submitted to the jury for their consideration.

Some parts of the charge of the Court may be subject to verbal criticisms, but we see nothing in it unharmonious or misleading. Taken as a whole it fairly submitted the case to the jury, and under such circumstances the verdict will not be disturbed for mere inaccuracies or errors from which no possible injury could have resulted to the defendant.

The newly-discovered evidence upon which the defendant asked for a new trial was cumulative.

We cannot say that the damages given by the jury are excessive, or appear to have been given under the influence of passion or prejudice.

No error prejudicial to the defendant appearing in the record, the judgment and order appealed from are affirmed.

We concur in the judgment: Ross, J., McKinstry, J.

It is proposed in the following note to discuss a subject which has not been previously treated in the annotations to these reports-the subject of the responsibility of railroad companies as warehousemen. A number of cases have been decided upon this point; an attempt will be made to state systematically the result of these decisions.

In order to authorize a railroad company to erect a warehouse, express power to that effect must be conferred by the terms of the charter. Such power will not in any case be implied from the grant of the ordinary corporate powers and franchises. Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. St. 23. Nor does the grant of the power of eminent domain authorize a railroad company to appropriate land for the erection of a warehouse. Bird v. Wilmington and Manchester R. R. Co., 8 Rich. Eq. 46.

Where goods are left by the owner, with a railway company, pending orders to transport the same, the liability of the company is that of a warehouseman, and not that of a common carrier. Michigan Southern and Northern Ind. R. R. Co. v. Schurtz, 7 Mich. 515; O'Neill v. New York Central, etc., R. R. Co., 60 N. Y. 138.

Where goods are shipped over various lines and lie in warehouse at the connecting point of one line with another, they are nevertheless considered qua the owners as continuing in transit. Hence the liability of the railroad company who has contracted to transport them remains that of a common carrier. Conkey v. Milwaukee and St. Paul R. R. Co., 31 Wis. 319; Wood v. Milwaukee and St. Paul R. R. Co., 32 Wis. 398.

But where a number of mules were forwarded over various connecting lines and were stored at a point of intersection and while so stored escaped, it was held proper to submit to the jury the question whether under the contract of transportation the carrier was liable as warehouseman or as common carrier. North Missouri R. R. Co. v. Akers, 4 Kans. 453.

It is the duty of a railroad company, after transporting goods to the point of destination, to put them in store, when the consignee is not on hand to receive them. McHenry v. Phila., W. and Balt. R. R. Co., 4 Harr. (Del.) 448.

Some authorities hold that the liability of a railroad company for goods thus stored remains that of a common carrier. Buckley v. Great Western R. R. Co., 18 Mich. 121. But the great weight of authority is to the contrary. In almost every State it is held that when once the transportation has been completed the company may terminate its liability as common carrier by storing the goods, and thereafter is bound only to the duties of a warehouseman. Rice v. Boston and Worcester R. R. Co., 98 Mass. 212; Cincinnati and Chicago R. R. Co. v. McCool, 26 Ind. 141; Northrop . Syracuse and C. R. R. Co., 5 Abb. Pr., N. S. 425; Jackson v. Sacramento Valley R. R. Co., 23 Cal. 269; Judson v. Western R. R. Co., 4 Allen, 520; McCarty v. N. Y. and Erie R. R. Co., 30 Pa. St. 247; Davis v. Michigan Southern and North Ind. R. R. Co., 20 Ill. 412; Mobile and Girard R. R. Co. v. Prewitt, 46 Ala., N. S. 63; Bansemer v. Toledo and Wabash R. R. Co., 25 Ind. 434; Ayres v. Morris and Essex R. R. Co., 5 Dutch. 393.

It is said that this will be the case, even though the consignee has had no opportunity to remove the goods. Norway Plains Co. v. Boston and Me. R. R. Co., 1 Gray, 263.

Other authorities hold, however, that a reasonable time must be allowed to elapse for the consignee to remove the goods before the railroad company can relieve itself from the obligations of a common carrier. Spears v. Spartenburg Union, etc., R. R. Co., 11 S. C. 158; Thompson v. Boston and Prov. R. R. Co., 10 Metc. 472; Alabama and Tenn. R. R. Co. v. Kidd, 35 Ala., N.

S. 209.

Some cases hold the company must in such case notify the consignee. Upon this point the court in Sherman v. Hudson River R. R. Co., 64 N. Y. 254 said:

"A carrier has not performed his duty until he has delivered or offered to deliver the goods to the consignee, or done what the law esteems equivalent to delivery. When the consignee is unknown to the carrier a due effort to find him and notify him of the arrival of the goods is a condition precedent to the right to warehouse them." See also upon this point Spears v. Spartenburg Union, etc., R. R. Co., 11 S. C. 158; Union Express Co... Ohleman, 92 Pa. St. 323.

If the consignee has been duly notified and not being ready to receive the goods has permitted the same to be stored by the carrier, the liability of the latter is of course merely that of a warehouseman. Rothschild v. Michigan,

etc., R. R. Co., 69 Ill. 164; Stowe v. N. Y., Bost., etc., R. R, Co., 113 Mass. 521; Mohr. Chicago, etc., R. R. Co., 40 Iowa, 579.

Where the distance over which the goods had been transported was very short, and the consignee resided a long distance from the railway station, and failed to have an agent awaiting their arrival, it was held that the railroad company having stored the goods were thenceforth liable as warehousemen only. Hilliard v. Wilmington and Weldon R. R. Co., 6 Jones L. 343.

Where the consignee of goods refuses to accept them and thereupon the railroad company states to him that they have no accommodation for the storage of said goods, notwithstanding which said consignee leaves them in the hands of the company by whom they are stored, said company is liable as a warehouseman. Smith v. Nashua and Lowell R. R. Co., 27 N. H. 86.

Where goods were received at the point of destination and at once called for by the consignee but delivery thereof was refused until the next day, and the goods were mean time stored, it was held that the liability of the common carrier as such continued. Faulkner v. Hart, 82 N. Y. 413.

Where a railroad company has knowingly received and transported goods which could legally be deposited only in a bonded warehouse and, upon their arrival at the point of destination, stores the same, neglecting to notify either the revenue officers or the consignee, the duty of the company as a common carrier will be held to continue. Chicago, etc., R. R. Co. v. Sawyer, 69 Ill. 285.

In Illinois, railroad companies are expressly forbidden by statute to store grain transported by them in any other warehouse than that to which it is specially consigned. Vincent v. Chicago and Alton R. R. Co., 49 Ill. 33; People ex rel. v. Chicago and Alton R. R. Co., 55 III. 95.

A railroad company which has assumed the duties of a warehouseman is liable for negligence only, in the care of the goods stored by it. McCarty v. N. Y. and Erie R. R. Co., 30 Pa. St. 247.

If the storage be gratuitous on its part, it is liable only for gross negligence. McCombs v. North Carolina R. R. Co., 67 N. C. 193; Michigan G. and N. R. R. Co. v. Schurtz, 7 Mich. 515.

Railroad companies are, however, generally held entitled to charge reasonable rates for storage. Illinois Central R. R. Co. v. Alexander, 20 Ill. 23. And are therefore generally held as warehousemen to the liabilities of other

bailees for hire.

Where a railroad company had posted a notice that storage would be charged upon all goods left with it for more than two days after arrival, it was held that a consignee leaving goods for a greater length of time became liable to pay storage whether he was actually informed of the contents of the notice or not, and hence that the company was liable as a bailee for hire. Dimmick. Milwaukee and St. Paul R. R. Co., 18 Wisc. 471.

Where a railroad company is sued to recover the value of goods lost by it while discharging the duty of a warehouseman, it may exempt itself from liability by simply showing that the loss occurred without the want of any ordinary diligence on its part. It need not prove exactly how the loss did Lichtenheim v. Bost. and Prov. R. R. Co., 11 Cush. 70.

occur.