Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).
Defendant appeals from a judgment in favor of plaintiff entered by the trial court sitting without a jury.
Plaintiff had purchased 60,000 lbs. of tallow from the M.A. Delph Co., Indianapolis, Indiana, to be delivered to its plant in Newark, New Jersey. Such tallow or melted fat is used in the manufacturing of soap. The tallow was shipped from Massillon, Ohio, to Newark by Standard Provision Company, in a tank car owned by the Frey Company of Chicago and
furnished by the shipper. The car was loaded and sealed by Standard at its siding in Massillon. A bill of lading for the shipment was issued by the Pennsylvania Railroad Company for shipment over its line and that of the Central Railroad Company of New Jersey. The car remained sealed during transit. The bill of lading described the shipment as:
"TANK CAR INEDIBLE TALLOW APPROX. 60,000 lbs"
The bill of lading recited:
"Received * * * the property described below in apparent good order except as noted (contents and condition of contents of packages unknown) * * *"
The tank car consisted of a horizontal cylindrical steel tank having a dome at the top in which there was an opening through which the car could be loaded. There was an outlet at the bottom of the car which was provided with a valve controlled by a handle which could be reached only through the dome. Below the outlet valve was a short outlet pipe or chamber with a threaded end to which a hose could be attached to receive the contents of the car upon unloading. The outlet pipe was provided with a threaded screw cap. In the center of this, in turn, there was a small inspection plug.
At the trial, plaintiff's general manager, David E. Rothschild, testified that the customary way of loading tank cars with tallow was as follows: With the outlet valve in the closed position and the screw cap off, the tallow, which had been melted, was loaded into the car through the dome opening. The screw cap was left off the bottom of the outlet during the loading process to assure that the valve was operating properly, for if it was not, the tallow could be observed leaking through the outlet pipe. After the loading was completed, if there was no leakage through the valve, the cap was screwed on to the threaded end of the outlet pipe and both the dome and cap were sealed by the shipper. This testimony was received over the objection of defendant's counsel, who contended that first hand testimony was required as to the actual
method of loading employed by the shipper or its representative.
After loading, the tallow would again congeal into its solid state (similar to butter stored in the butter compartment of a refrigerator). This required a period of from two to two and one-half days during the wintertime. Upon arrival at destination, the tallow was melted with steam so ...