Opinion by
Rice, P. J.,■ This case came into the common pleas by appeal by defendant from the judgment of a justice of the peace, and into this court by appeal by plaintiff from the refusal to set aside the compulsory nonsuit entered on the trial. The defendant moves to quash the latter appeal, and in support of its motion assigns noncompliance, in several particulars, with the rules of court relative to the preparation of paper-books and to the form and substance of assignments of error. Some of these defects have been corrected, but others have not been, and amongst the latter is the omission to print in the appendix or elsewhere in the paper-book an exact copy of the petition which the docket entries show was the foundation of the rule to show cause why the appeal to the common pleas should not be struck off. This is a substantial defect, which was not rendered harmless by the recital in the opinion of the court, of its version of the reasons alleged in support of the rule, or the recital, in the assignments of error, of counsel’s version of them. See Cunningham v. Everett, 24 Pa. Superior Ct. 469. Reasonable compliance with the rules of court required that the petition itself be printed. See Rules 17 and 18. Further, while it appears in the paper-book that at some time not stated (counsel do not agree as to the time) the plaintiff excepted to the order and opinion of the court upon that rule, and requested that a bill of exceptions be sealed, it does not appear that the court allowed an exception or sealed a bill. As the order was made long prior to the passage of the Act of May 11,1911, P. L. 279, it is at least questionable whether sec. 6 of that act rendered an exception unnecessary to subject the order to review. But be that as it may (a point not decided), the other defect to which we have alluded is sufficient ground for dismissing the first two assignments of error, which we have no hesitation in doing, as they do not go to the merits.
As to the third assignment, it is enough to say that error is not assignable to the entry of a judgment of com» *288pulsory nonsuit under the Act of March 11, 1875, P. L. 6; the assignable and reviewable error, if any, is in the refusal to set it aside. See Monaghan’s Penna. Appellate Pr., sec. 82.
The fourth assignment, which relates to such refusal, might seem at a hasty glance to raise two distinct questions and, therefore, to be in violation of Rule 14. But examination shows that such impression would be erroneous. It results from the inclusion in the motion, as one of the reasons therefor, the rejection of certain offers of evidence. While this was irregular, it was not irregular to include in the assignment, and print in connection therewith, the motion precisely as it was made. The substantial question before us is not whether all the reasons assigned in support of the motion were good, but whether the refusal of the motion was wrong, and this is sufficiently raised by the assignment. According to the provisions of the act of 1875, the record is before us “for revision and review, in like manner and with like effect as he (the plaintiff) might remove a judgment rendered against him upon demurrer to evidence.” Manifestly, therefore, the record is to be reviewed under this assignment with reference exclusively to the evidence admitted, and not upon that evidence, in connection with the offers of evidence, that were excluded. If errors were committed in the latter particular, which the plaintiff desired to have corrected, they should have been made the subject of separate assignments and set forth in accordance with Rules 14 and 16. This has not been done, and therefore the admissibility of the offers of evidence that were excluded is a question not properly before us. Thus viewing the case, it needs but few words to show that this assignment must be overruled. According to the transcript of the justice of the peace and the evidence adduced upon the trial, the plaintiff’s claim was for $40.98, with interest from January 1, 1905, for loss and damage on goods shipped over lines of the defendant company, and overcharge on freight. The plaintiff *289proved the shipment of the goods and the freight rates agreed upon, but, owing to the exclusion of his offers of evidence, he was unable to prove the payment of any freight rate in excess of that agreed upon, or that any of the goods in any of the three shipments were either lost or damaged. Counsel cite the general rule, that where, goods are lost or injured while in the custody of a common carrier, under a special contract, and the carrier gives no account of how it occurred, a presumption of negligence is of course; but this principle does not dispense with proof of loss or injury, or sustain a presumption of nondelivery by the carrier. In other words, a prima facie case of negligence, or of breach of contract, is not made out by mere proof of delivery to the carrier. The fifth assignment of error raises the same question, and for the same reason is overruled.
There are some objections raised against the appellant’s paper-book which, in view of the foregoing conclusions, we have not deemed it necessary to discuss; but we are not to be understood as considering them immaterial. Probably they would not have occurred had the appeal not arisen so soon after the adoption of the new rules of court.
The judgment is affirmed.