his part of a defective condition of the premises would create that duty. The only evidence tending to show that Day had knowledge of the condition of the plastering before the plaintiff's injuries is in the testimony of Judith K. Young to the effect that, while she occupied rooms in this house from November 1, 1906, to April, 1907, she called Day's attention to a place in the kitchen ceiling, near where the plastering fell upon plaintiff, where there was a leak, and from which some plastering had then fallen. But that was after the beginning of Mrs. Foss' tenancy, for the witness testified that Mrs. Foss occupied the tenement at the time she went there and that she "hired with her."

Further, the plaintiff alleged in her declaration "that the defendant Day had undertaken to remedy said dangerous condition and had done the work so unskillfully and incompletely as not to make said kitchen safe for occupancy." In support of this allegation the plaintiff testified that about a week or ten days after her accident Mr. Day was at the house, and Mrs. Foss called his attention to the leak in the kitchen, which presumably caused the plastering to fall, and that he said he had been up there to work on the roof with men, and Mrs. Foss replied, "You haven't stopped the leak yet." The plaintiff further testified that no work was done on the roof from the time of her injuries to the time of this conversation.

Assuming that this testimony would justify an inference that Day had, prior to the time of the plaintiff's injuries, undertaken to repair the leak in the roof, and, in the language of the declaration "had done the work so unskillfully and incompletely as not to make said kitchen safe for occupancy," that inference alone would not authorize the application of the principle which the plaintiff here invokes.

That principle is thus expressed in Gregor v. Cady, 82 Me. 137, 19 Atl. 108, 17 Am. St. Rep. 466: "And although the lessor's attention, after possession taken by the lessee, was called by the latter to the rickety condition of a portion of the premises, and he thereupon agreed to repair it, still he was under no obligation to fulfill his promise. But when, upon the request of the lessee, the lessor gratuitously undertook to make the repairs, and negligently and unskillfully performed the work, whereby the lessee was subsequently injured, the lessor became liable by reason of his misfeasance, provided he undertook to repair the particular part of the premises to which his attention was called and where the injury occurred." "If a party makes a gratuitous engagement, and actually enters upon the execution of the business, and does it amiss through the want of due care, by which damage ensues to the other party, an action will lie for this

misfeasance." 2 Kent's Com. 750. "The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it." Note in Coggs v. Bernard, Smith's Lead. Cases (6th Am. Ed.) 335 [2 Ld. Raym. 909, 1 Am Neg. Cas. 948]. It will be seen that this principle is not applicable to the case at bar. If Day undertook to repair the roof before the accident to the plaintiff there is no evidence that the plaintiff was a party to his gratuitous undertaking, or had any knowledge of it before her accident. To give the plaintiff a right of action against Day for misfeasance on his part, if he did actually enter upon the gratuitous service of repairing the roof, it must be proved at least that she had knowledge of his undertaking; otherwise, no confidence could have been induced in her by his acts, and, of course, without such knowledge on her part, it could not be held that she relied upon the assumption that he had exercised reasonable care and skill in the performance of that work. No such proof is made. It is therefore the opinion of the court that the evidence in behalf of the plaintiff was not sufficient to entitle her to a verdict against the defendant Day, and that the non-suit was properly ordered.

We assume that the plaintiff does not now urge the other exceptions taken, as no argument in their support is presented in the brief of plaintiff's counsel.

But we find no reversible error in the rulings excepted to. The testimony excluded was clearly incompetent and immaterial. "Agency cannot be established against an alleged principal by showing the words and acts of the alleged agent." Eaton v. Provident Association, 89 Me. 58, 35 Atl. 1015.

The entry in this case must therefore be: Exceptions overruled.

1.

PARNELL v. ATLANTIC COAST LINE RAILROAD CO.

[SUPREME COURT of South CAROLINA, APRIL 8, 1912.]

S. C.

74 S. E. 491.

Carriers-Terminal Line-Goods-Injury-Presumption

A terminal carrier who delivers to a consignee in a damaged condition, a piano which it received from a connecting carrier, is presumed to have received the same in good condition, and, therefore, has the burden of showing that it was damaged when received by it.

2. Carriers-Terminal Line-Injury to Goods-Presumption-Nonsuit.

In an action against a terminal carrier to recover damages for injuries to a piano, received in the course of shipment, the court should order a nonsuit. where the defendant produces clear and conclusive evidence to rebut the pre sumption that the injuries occurred after it had received the same from a con necting carrier.

3. Appeal-Weight of Evidence-For Jury.

The weight of evidence introduced in an action against a terminal carrier. to recover damages for injury to a piano, to overcome a presumption that the piano was damaged after it was received from a connecting carrier, is for the jury, and their verdict will not be disturbed on appeal.

Appeal by defendant from a judgment of the Circuit Court of Common Pleas of Darlington County, rendered in favor of plaintiff, Mamie A. Parnell, in an action brought to recover for damage to a piano. Affirmed.

For appellant-W. F. Dargan.

For respondent J. Monroe Spears, and Miller & Lawson.

WOODS, J. The plaintiff on December 27, 1908, delivered to the St. Louis & Iron Mountain Railroad Company at Collinston, La., a piano inclosed in a box, consigned to herself at Lamar, S. C. The piano was delivered by the Southern Railway, an intermediate carrier, to the defendant, the terminal carrier, at Sumter, S. C. On arrival at Lamar it was found to be considerably injured; and the plaintiff in this action recovered against the defendant a judgment for actual damages fixed by the jury at $350.

NOTE.

On the subject of Presumption of Negligence, see notes in 5 Am. Neg. Rep. 77; 8 Am. Neg. Rep. 298.

And on the subject of Negligence of

Two Carriers, see note in 8 Am. Neg.
Rep. 164.

And on the subject of Liability of Connecting Carriers for Negligence, see note in 12 Am. Neg. Rep. 191.

The appeal depends on the defendant's position that the circuit judge should have granted a nonsuit or directed a verdict on the ground that its evidence was overwhelming and admitted of no other conclusion than that the piano had been damaged before it was received by it at Sumter. The plaintiff testified that the piano was in good condition, and properly packed in a new box when it was shipped; and the agent of the initial carrier testified that it was shipped by him from Collinston in good condition.

On the part of the defendant there was evidence from a number of railroad agents who handled the shipment that the box was old, too large for the piano, and that the packing was very badly done. This conflict of testimony made a distinct issue of fact which only the jury could decide as to the condition of the shipment when it was received by the initial carrier.

In a case like this, it is well-nigh impossible for the owner of prop erty to ascertain on which of several connecting carriers property in transit was injured, and to meet this difficulty the courts have generally held that the burden is on the carrier which delivers the goods to the consignee to respond to any damage which occurs in transit unless it can affirmatively show that the goods were injured while in the hands of some other carrier. Willette v. Southern Ry Co., 66 S. C. 477, 14 Am. Neg. Rep. 635, 45 S. E. 93. This presumption against the terminal carrier stands as evidence throughout the trial to be weighed by the jury alone with any rebutting evidence of the defendant tending to show that the damage was done while the goods were in the hands of another carrier.

Nevertheless, when the rebutting evidence is so clear and conclusive that no reasonable man could fail to come to the conclusion that the damage had not been done by the terminal carrier, then it would be the duty of the court to order a nonsuit or direct a verdict for the defendant (Baker v. Western Union Tel. Co., 87 S. C. 174, 69 S. E. 151), and the defendant contends that the evidence offered to rebut the presumption of damage while the goods were in the hands of the terminal carrier was so conclusive as to come up to this standard. In weighing evidence to ascertain whether the terminal carrier has, beyond all doubt, overcome the presumption, it ought always to be borne in mind that the presumption is based on the fact that the shipper usually has no other protection, and no other means of meeting any testimony of the railroad agents as to the place where the damage occurred.

Assuming all the testimony of the railroad agents to be true, it falls short of conclusively showing that the damage was not done on the

terminal road. It is true that the agents testified, and the waybills indicate, that the box was in bad condition when it was delivered to the Southern Railway, the intermediate carrier, and by it to the defendant, the terminal carrier; but not one of the agents examined the piano itself or could testify as a fact known to him that the defect in the packing or the breaking of the box had resulted in injury to the piano before it reached the terminal carrier. It is true the evidence of the witnesses seemed to make it very probable that the damage was done before the piano was delivered to the defendant, but it was the province of the jury, and not of the judge, to weigh the prob ability against the presumption to the contrary, and there is no ground for this court to disturb the conclusion the jury reached.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.

GARY, C. J., and HYDRICK and WATTS, JJ., concur. FRASER, J., did not hear the case.