201 Mich. 39 | Mich. | 1918
On January 2 and 4, 1912, plaintiff loaded and shipped on defendant’s line two carloads of potatoes from Brutus, Emmet county, Michigan, to its agent Joshua A. Cave, at Charleston, S. C. Each car contained 220 sacks, weighing about 165 pounds each, of seed potatoes, known as “Irish Cobblers.” They were raised by farmers near Brutus at so much per bushel, from seed furnished by plaintiff, to be delivered to plaintiff’s agent in Brutus, from whence they were to be shipped by plaintiff for seed on its plantation in South Carolina.
Plaintiff introduced testimony tending to show that the sacks containing these potatoes were heavy burlap, weighing 2 1-2 to 3 pounds each, that the potatoes were carefully sorted and all defective, unclean or unsound ones rejected; that they were shipped in refrigerator cars which were well heated by stoves placed in them and a hot fire maintained for 48 hours until all moisture was dried out and the heat had thoroughly penetrated the double sides and floor of the refrigerator cars used, which had been lined with two coats of heavy paper on the bottom, sides, ends, ceiling, and inside of the doors, straw being placed on the bottom six inches thick and packed between the sacks and walls, the stoves being kept or replaced in the car after it was loaded and a good fire again started and maintained in them with closed doors for some time, when they were finally removed and the cars quickly closed, caulked, sealed and delivered in that condition to defendant for transportation; that
An offer, or attempt, to prove the custom m regard to loading and shipping cars of potatoes from Michigan to points outside the State during the winter months was ruled out on defendant’s objection, the court saying, “That is not material. * * * The question is what they did.” Testimony of two witnesses experienced in handling and shipping potatoes to southern points, introduced against objection, showed that the usual time, under ordinary winter conditions, for moving such freight between Brutus, Michigan, and Charleston, S. C., is from six to seven days, but this testimony was all subsequently stricken out on defendant’s motion.
Plaintiff’s agent, Cave, was notified of the arrival of the cars at Charleston on the 17th of January, 1912. He paid the freight, amounting to $400.95 and at once went to the cars and inspected the potatoes sufficiently to ascertain some of them were frozen, some wet and some rotten, and he notified the railroad agent, refusing to accept the shipment until he had notified plaintiff and received instructions, when he was directed to dispose of them to the best advantage. He then had them unloaded, hauled to a warehouse, spread out upon the floor and sorted. He found them unfit for planting purposes and sold what were sale-able for table use at the best price obtainable in Charleston, the two carloads netting $1,204. A dealer in Charleston, who was familiar with the potato business and had handled them in large quantities, testi* fied that he examined these carloads after they were
Conceding that the admission of the depositions after plaintiff had rested was discretionary with the court, striking out plaintiff’s evidence as to the usual time of carrying such freight to its destination was not. The testimony showed that both witnesses had years of practical experience in shipping potatoes south in the winter from Brutus and its vicinity to as far as Charleston, and beyond, and knew by experience the usual running time under ordinary winter conditions. The main objection interposed to this line of inquiry was that it did not include the condition of weather and other possible causes of delay existing when the cars were in transit and of which the wit
While the right to make contracts upon the subject, not in violation of law, and certain excusing exceptions are recognized when proved, the general rule obtains in this State, as elsewhere, that the duty of a common carrier is to safely transport goods, properly prepared for shipment and in good condition, entrusted to and accepted by it for that purpose, to their destination safely and with reasonable dispatch. If unusual conditions cause unavoidable delay, preventing the performance of that duty, with resulting damage, the burden of proof is not upon the shipper to negative the exception, but rightfully rests with the carrier, who is in possession of the goods and best knows the facts, to show that its negligence did not cause, or contribute to, the loss or injury.
Defendant cites and urges as conclusive here Michigan Cent. R. Co. v. Burrows, 33 Mich. 6, and Lardie v. Railroad, 192 Mich. 77, which, it is pointed out, “place freezing in the class of events termed the ‘act of God’ ” and say,
, “We believe it is the law in this State that freezing, not shown to be caused by the negligence of the carrier, is recognized as an exemption.”
While the goods being transported in the two cases cited were injured by freezing, and certain language found in the discussion may lend color to some of defendant’s contentions, the directly pertinent and controlling questions there decided under the facts proven do not directly apply to the facts shown or decide the questions raised in the instant case. The Burrows Case was decided before the law as to liability for
“They (plaintiffs) might have waited for a refrigerator car, but preferred to use a box car and excuse the carrier from liability for the danger to which the shipment would be subject under those conditions. They were not obliged to accept this car or none. Though the parties contemplated the possibility of a freezing, that fact did not make it the natural consequence of the breach of the contract, by unreasonable delay. Even if it had, the plaintiffs have expressly absolved the carrier from liability for the consequence of freezing.”
The points upon which those cases turned and were rightfully decided have but remote application and are not controlling in this case, where it is evident, from the course the trial took, with defendant standing upon objections and plaintiff precluded from introducing
For the errors pointed out the case is reversed and a new trial granted, with costs to plaintiff.