Hayes v. Philadelphia & Reading Coal & Iron Co.

The defendant excepted to the refusal of the court to rule that the plaintiff on the evidence could not maintain the action. The report states that the defendant requested this ruling “ solely upon the ground that there was no evidence to authorize the jury to find an implied agreement between the defendant and Samuel Knight that the defendant would furnish the tackle and appliances which were upon the barge for use in unloading the coal.” See Pingree v. Leyland, 135 Mass. 398. The .court, having refused so to rule, “ submitted the case to the jury under instructions not objected to.” The case has been argued in this court upon the theory that it was necessary for the plaintiff to prove a contract between the defendant and Knight that the defendant should deliver the coal at Knight’s wharf in a barge or vessel provided with masts, stays, and tackle, which Knight should have the right to use for the purpose of unloading the coal. But it. was enough, we think, if the plaintiff proved that the tackle and appliances on the barge were actually intended by the defendant to be used by its customers in delivering coal, and were furnished by the defendant for this purpose, and if Knight as a customer and purchaser of coal was invited by the defendant to use them in unloading his coal. Of this there was abundant evidence. See Elliott v. Hall, 15 Q. B. D. 315.

Indeed, we think that, from the long course of dealing between Knight and the defendant, as shown by the evidence, and from the admitted purpose for which the tackle and appliances were put into the barge, and from the use which Knight had been accustomed to make of the tackle and appliances in unloading cargoes of coal, it was competent for the jury to find that it was *461a part of the contract that the coal should be delivered alongside Knight’s wharf in the usual manner, and with the usual appliances for unloading it, and that he might use these appliances in unloading it. It is not contended that there was no evidence of negligence on the part of the defendant, if the defendant was under any duty to Knight to furnish him with masts, stays, and tackle for unloading coal in the manner in which this coal was unloaded. Judgment on the verdict.