Hoffman v. Delaware, Lackawanna & Western Railroad

39 Pa. Super. 47 | Pa. Super. Ct. | 1909

Opinion by

Henderson, J.,

In the absence of a contract providing otherwise, the obligation of a carrier of goods is to transport by the usual route adopted or held out to the public by him and to deliver with reasonable diligence. The defendant’s undertaking was restricted by the terms of the contract to delivery to a connecting carrier on the route to its destination, as that place was beyond the line of the defendant’s road. The subject of the transportation was consigned to the plaintiff at “Petersburg, W. Va., % B. & O. Freight Agent, Keyser, W. Va.” This'place is a small town in the interior of the state, more than forty miles distant from Keyser, which is the nearest accessible railroad station. To avoid confusion or misunderstanding, by direction of the plaintiff the property was consigned to the care of the freight agent at Keyser. It was not in contemplation of the parties that delivery of the freight should be made by the carrier at the ultimate destination. Its obligation would have been discharged by delivery at the railroad station indicated in the bill of lading. The agent of the defendant in making out the transfer waybill called “Pro. 573” omitted to write thereon the direction to transport to Keyser or to communicate any other instructions to the connecting company than were contained in the “Pro.,” and this oversight the plaintiff contends was the proximate cause of the delay in the delivery of the machine. It appeared from the evidence of the defendant’s own witnesses that the additional instruction as to the point of consignment contained in the original bill of lading would have aided in routing its conveyance and that with that information it would have been routed by Harrisburg, Shippensburg, Cherry Run and thence by the B. & 0. road to Keyser. Instead of that the freight was rated and routed to Petersburg, Va. The question whether the negligence of the defendant’s agent in not correctly transmitting the instructions as to the destination to the connecting carrier was the proximate cause of the delay in transportation was submitted to the jury and under the authorities we think this was proper. Whether the facts constitute a continuous succession of events so connected as to be a natural whole or whether the connection is so broken as to leave the parts independent and the final result cannot be said to be the natural and probable consequence of the negligence of the defendant is ordinarily a question for the jury. If the injury resulted from a cause not connected with the initial fault there is no liability, but the jury must determine the relation of the cause unless the fact clearly appears that there is no connection between the original fault and the injury: Haverly v. R. R. Co., 135 Pa. 50; Thomas v. R. R. Co., 194 Pa. 511; Gudfelder v. R. R. Co., 207 Pa. 629. It is only the duty of the court to determine the question as a matter of law when the inferences are plain and not open to doubt by reasonable men. Whether the injury was a probable consequence of the negligent act of the defendant’s agent and as such ought to have been foreseen in the light of the circumstances a jury only could determine, and this is the more manifest from the evidence that the consignee gave special instructions as to the method of consignment because of the fact that mistakes and delays occurred in the delivery of freight to him on account of the similarity of names of the town where he conducted his business and a city in an adjoining state. Conceding that the act of the agent of the Lehigh Valley company in response to the Ryan telegram specifically directed the delivery of the goods to Petersburg, Va., still it does not conclusively follow that that direction was an independent, intervening, proximate cause, for if the direction had been properly given by the defendant’s agent to the Lehigh Valley company the freight would not have been in Baltimore and would not have been routed and rated to Petersburg, Va. It would have gone by a different and direct course toward its destination. At least, a jury would be justified in assuming that such would have been its course, and it might well be concluded from the evidence that the original negligence of the defendant was directly connected with the subsequent mistake of the agent of the Lehigh company in causing the loss, especially in view of the fact that it does not appear that there was any railroad station named Petersburg in West Virginia. The portion of the shipping directions omitted from the “Pro.” was the only railroad destination given on the paper, and it was not an improbable consequence of the omission that the employees of the connecting road would be misled as to the terminus of the route. We are not warranted in declaring as a matter of law that the act of the agent of the Lehigh Railroad Company in directing the shipment to Petersburg, Va., was so independent of, and unrelated to, the negligence of the defendant’s agent as to relieve the defendant from liability for the injury. Exemption in the contract of carriage from loss or damage beyond the line of the forwarder will not relieve the latter where such damage is brought about by negligent misdirection by the first carrier: North et al. v. Merchants’, etc., Transportation Co., 146 Mass. 315; Johnson v. R. R. Co., 33 N. Y. 610; Ill. Cent. R. R. Co. v. Southern Seating, etc., Co., 104 Tenn. 568.

The court left it to the jury to say whether there was a special arrangement made between the defendant and the Lehigh Valley Railroad Company, under which the latter company would rate and route all property consigned to it over the branch of the defendant’s road from which this freight came, with the instruction that if they should so find, then the act of rating and routing the plaintiff’s property was in legal effect the act of the defendant, in which case the exemption from liability clause in the bill of lading would not relieve the defendant. This instruction was predicated of the evidence of Mr. Mc-Millen and Mr. Mattes, from which it may be inferred that such method of doing business existed. The company did not have any arrangement for through rates or routes from the station at which this freight was shipped to stations on the B. & 0. Railroad, and it became necessary to have the freight rated and routed under their arrangement with the Lehigh Valley company at their junction at Easton. It is not to be supposed that when the defendant accepted the consignor’s freight it was the understanding that it was to be delivered at Thirteenth street in Easton. Its obligation went beyond that. The freight was accepted for delivery at a distant station and the carrier’s duty was not performed when it was brought to Easton. The railroad company was required to deliver the consignment to the connecting carrier, and if, as the evidence tends to show, instead of fixing the rate and route at the station where it received the freight it arranged to have that done by the Lehigh Valley Railroad Company it would be responsible for any fault of the agent of the latter company when acting in the defendant’s behalf about the contract of shipment.

Objection is made to the instruction of the court with reference to that provision of the bill of lading which provides that claims for loss or damage must be made in writing to the agent at the point of delivery promptly after the arrival of the property and if delayed for more than thirty days after the delivery of the property or after due time for the delivery thereof the carrier shall not be liable in any event. That a claim in writing was made within thirty days after the property was delivered at Keyser is clearly established. There is also evidence that a letter was read to the station agent of the defendant at the place of shipment containing notice of the failure to deliver promptly. After notice, the defendant undertook to locate the shipment and to deliver with dispatch. The plaintiff was also notified by the agent at Keyser that there would be plenty of time after the arrival of the machine to serve notice; that there was no evidence before him that the freight had come on to the line of that road. This evidence if credited shows that the defendant had prompt notice of the nondelivery of the freight as had the agent at the point of destination, and the conduct of the defendant with reference to the delivery of the property after notice of nondelivery brings the case within the doctrine of Eckert v. R. R. Co., 211 Pa. 267. The object of the provision in the contract for notice is to enable the carrier to take the necessary steps to bring about the delivery of the property or to inquire into the facts and protect against imposition. All this was accomplished in the case now before us. The company had the full benefit of the provision for notice, and its conduct subsequent to notice raises a basis for the conclusion that further notice in writing was waived.

In addition to the cost of the machinery and the expenses incident to its shipment, which would be the amount of damage ordinarily, the plaintiff claimed special damages for the loss of the use of the machine and recovered $500 for loss on fodder and $285 for loss on manure. The case was apparently submitted to the jury on the theory that the machine was indispensable to the shredding of the fodder and the economical feeding of the cattle, but it is not to be overlooked that it was not a machine for shredding or cutting fodder; it was a power apparatus simply which could be attached to machinery adapted to shredding fodder or so far as appears to any other agricultural implement. It was not a machine of peculiar construction and specially adapted to the particular purpose, and it is not shown that another power might not have been obtained to answer the same purpose. Indeed, it did appear at the trial that the defendant had procured a gasoline engine from the same manufacturer in February following the shipment of the horse power, and he had notice in December that his machine had been miscarried and was at Petersburg, Va. Moreover, the evidence as to the necessity for feeding the fodder at the time and in the way in which it was done does not bring the case within the class entitling the plaintiff to special damages. According to the plaintiff’s statement, when he bought his farm it was arranged to feed whole fodder in the cattle pens. He had this construction torn out and boxes put in for feeding shredded fodder. There were stalls all through the place. These he caused to be torn out and the sheds divided into sections of ten so that ten cattle could be fed in one section. There was also a large barnyard for them to run in and straw racks there for feeding straw. According to his theory it was not possible to feed them whole fodder in that arrangement, but we are not informed what difficulty there would have been in adopting a plan under which the whole fodder could have been fed, nor what the cost of such arrangement would have been, nor whether it was necessary to feed the fodder before he got the power to operate his shredder. The claim for the loss on manure grows out of the alleged inability to feed the cattle at the barn. The winter was cold, and in order to protect the cattle they were fed in a hollow in a sheltered place and in the woods, with a consequent loss of manure. If loss is to be charged against the defendant in accordance with the convenience of the plaintiff his calculations may be well supported, but it must first be shown that there was no other reasonable or practicable way in which his feeding enterprise could be economically carried on. He was not at liberty to indulge in what he alleges to have been a wasteful method of taking care of his stock and charge his loss to the defendant. It should be made clearly to appear that it was necessary to feed the cattle in the woods rather than in the barn or barnyard, and that there was no available means of securing power to operate the shredder, before the jury could enter into a consideration of the loss set up in this branch of the plaintiff’s case. In these days of multiplied and easily obtained implements for the production of power the inability of the plaintiff to provide means for cutting his fodder or to feed the same to his cattle in his bam should be made reasonably to appear. Nor do we think that the information communicated by the manufacturing company to the agent of the defendant at the time the shipment was made was of such facts as would put the defendant on notice of such results of a breach of the contract as are involved in this branch of the plaintiff’s claim. The measure of damages in case of a loss of freight is ordinarily the value of the thing lost or the contract liability. The value here was shown to be $241. The jury also found that the plaintiff was subjected to $55.00, expense of team. As the verdict returned by the jury discloses the items composing the aggregate we know what part of it was made up of these items. The verdict should, therefore, be modified and judgment entered for the amount recoverable on the case as presented, to wit: the price of the horse power and the expense incurred in sending a team to the station to transport it to the plaintiff’s farm. These items amount to $296, to which should be added interest for five years, five months and eighteen days, to the date of the verdict, making the amount of the judgment $393.09 at that time.

The judgment as thus modified is affirmed.