166 Ind. 278 | Ind. | 1906
—This action was commenced in the Washington Circuit Court, and was sent on change of venue to the court below. There was a trial by the court, which resulted in a finding and judgment for appellee.
The first paragraph of the complaint is founded on bills of lading, and the second alleges negligence upon the part of appellant as a common carrier of goods. It appears from the evidence that the shipment which gave rise to the case before us consisted of peaches and apples, and the contract of the parties was evidenced by a bill of lading. At the time of said transaction, August 30, 1901, appellant furnished to appellee and a third person a refrigerator car, belonging to Swift & Co., of Chicago, for use on its homeward trip in shipping said fruit to Chicago. The consignment was made to a commission firm of said city, to sell for the consignors. Appellant had no refrigerator car service between Salem, Indiana (the place of shipment), and Chicago, and had no facilities for supplying such cars with ice. As the car furnished had been used on its outward trip for the distribution of fresh meat, it was cool, or partially cool, when said shippers received it, and there was some ice in the tanks of the car at that time. The shippers put in enough ice to make altogether between six hundred and seven hundred pounds. The car was to leave that night (Friday), and would be due in Chicago at 3:40 o’clock Sunday morning. The shippers made no inquiry as to the schedule or as to the probable time of delivery. It was their supposition that the car would reach its destination sometime Sunday, and they put in enough ice, as they testified, to keep the car cool until it reached Chicago. The car is shown to have arrived at appellant’s yards, which are situate in the neighborhood of Forty-eighth and Forty-ninth streets in said city, at 4 o’clock Sunday morning. At this point the cars of said train were left by the