Samuel J. Gottesfeld, Philadelphia, for appellant.
Aaron Trasoff, Alma H. Arnold, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 431]
Plaintiff has appealed from the refusal by the court below to grant its motion for new trial.
The motion for a new trial was to the effect that the finding of the trial judge, sitting without a jury, was against the weight of the evidence. The trial judge had made a finding for defendant, and the court in banc, in dismissing plaintiff's motion, said, in an opinion written by the trial judge, that the goods received by defendant were delivered by it to the plaintiff consignee in the amount and in the condition in which they were received from the consignor. Judgment was entered on the finding for defendant.
The action was in trespass against defendant, a common carrier by motor vehicle, for alleged loss of
[ 168 Pa. Super. Page 432]
and damage to cargo in transit on October 25, 1946. Plaintiff had purchased from the Loft Candy Corporation, Long Island City, New York, some used machinery, including electric motors, for which it paid before shipment the sum of $915. Plaintiff claimed that, in transporting the machinery from New York to Philadelphia, defendant failed to deliver two motors of the value of $600, that some of the machinery was damaged to the extent of $125, and that there was a freight overcharge in the amount of $62.16.
The case was tried before a judge of the Municipal Court of Philadelphia County, without a jury, under the provisions of section 12 of the Act of July 12, 1913, P.L. 711, as amended, 17 P.S. § 695.
Plaintiff asserts that the presumptive validity of the bill of lading reciting 23 motors, 5 exhaust fans, and 1 lathe was not overcome by any evidence in the record.
There was a clear conflict arising from the evidence admitted without objection. Plaintiff's witness testified that only 21 motors were delivered, that some of the machinery was damaged, and that the ...