Nos. 17,494—(85) | Minn. | May 10, 1912
This action was to recover damages to a car of holly, owned by plaintiff and transported by defendants as common carriers from Tunstalls, Virginia, to St. Paul, in November, 1908. The case was tried before the court, without a jury, and a decision rendered in plaintiff’s favor in the sum ,of $294.22. Defendants appealed from an order refusing a new trial.
Plaintiff, at the trial, offered evidence tending to prove that the holly was in good condition when shipped, and in a frozen condition when received in St. Paul, and rested. Defendant offered no testimony, other than the evidence of one witness, that it was customary to ship holly in carload lots in box cars. It was not disputed that
It is therefore clear that plaintiff made a prima facie ease of negligence, and that the burden was on defendants to overcome the presumption. It is defendants’ contention that the presumption of negligence was overcome when it was proved that defendants accepted the car as loaded by plaintiff and transported it without delay to destination, in view of the fact that it was customary to ship holly in box cars. It is well settled in this state that the rule as to what constitutes a prima facie ease applies to perishable freight. The carrier is not an insurer, but he has the burden of proof. Unless we are prepared to hold that damage by frost while in transit is something that the carrier owes no duty to attempt to prevent, we can hardly sustain the contention that the evidence shows that defendants used due care. It is not necessary to point out what defendants could have done to save the loss of the holly. They offered no evidence of any effort in that direction. We think there was an entire failure to rebut the presumption of negligence that arose.
The statement in White v. Minneapolis & P. R. Ry. Co. 111 Minn. 167" court="Minn." date_filed="1910-05-27" href="https://app.midpage.ai/document/white-v-minneapolis--rainy-river-railway-co-7975354?utm_source=webapp" opinion_id="7975354">111 Minn. 167, 126 N. W, 533, to the effect that, if the carload of vege tables had been promptly transported, there would be difficulty in sustaining the verdict, even though the vegetables were frozen in transit was obiter and had reference onbp to the peculiar facts in that case.
Order affirmed.