146 Va. 475 | Va. Ct. App. | 1926
delivered the opinion of the court.
This is an action against an initial carrier, the Atlantic Coast Line Railroad Company, because of •delay in transportation of ten cars of potatoes from
“Q. From your records tell us about car Atlantic-Coast Line 44,081.
“A. That was set off at Dunlop by extra 1503 at, 5:37 a. m. on the morning of the 21st, with twenty-two, cars.”
Atlantic Coast Line car No. 29,784 did not move forward with the other cars on the 19th, but was held over until the 20th. It reached Jersey City at 11:35 p. m. on the 23rd;„ was put on barge at 10:10 a. m. on the day following and reached the New York dock at 3:30 p. m. The railroad agent at Meggetts said that this was done because this car was not loaded to capacity. D. Q. Towles was the original owner of the potatoes shipped in it. His positive evidence is to the effect that it was. This flat conflict the jury has settled and its judgment must be accepted here. We are also of the opinion that such delay as occurred at Petersburg in the forwarding of -car No. 44,081 was not chargeable against the defendant, but was due entirely to the fact that the diversion order was received after the car had actually been cut out. Afterwards it was sent forward with all reasonable dispatch. There was, undoubtedly, some delay at Petersburg of this message. It was received at 9:42 p. m. but it was a Western Union wire and the record does not show when or to whom it was delivered. Either the telegraph company was negligent or the railroad company was. In the absence of evidence negligence cannot be presumed as to either of these companies. Whatever this evidence may have been it was at hand and it was the plaintiff’s duty to produce it.
This brings us to the situation at Jersey City and New York. The docks at New York are owned by
There was, undoubtedly, some delay in the transfer of this freight. As an excuse for this defendant-offers proof of an unanticipated and extraordinary congestion -at that time and place.
During the week preceding that of the 23rd the number of cars of potatoes which reached New York over that road was as follows:
“Monday, May 16..................................._34 cars
“Tuesday, May 17..................................33 cars
“Wednesday, May 18..............._..............32 cars
“Thursday, May 19...............................22 cars
“Friday, May 20......................................25 cars
“Saturday, May 21..................................15 cars
“161 ears.”
For the market day of Monday, the 23rd, 171 cars, of potatoes arrived — ten more than had been received during the whole of the previous week.
The evidence also shows a like unexpected increase in arrival of all perishables at that point as will appear from the following statement:
“Arrivals Wednesday, May 18th........167 cars
“Arrivals Thursday, May 19th.....'.......166 cars
“Arrivals Friday, May 20th................161 cars
“Arrivals Saturday, May 21st.............. 93 cars
“Arrivals Monday, May 23rd______________440 cars.”
At that time there were on pier 29, 8,847 packages of perishables left over from Saturday’s business, and to make the situation worse, fifty-six cars of peaches came in, which, because' of their perishable nature, had to be given preferential handling. Pier 28 was taken up by dairy products and general merchandise. In this situation the road utilized the facilities of pier 29 on Monday and unloaded 177 cars. It also cleared out pier 28 and on Tuesday unloaded 263 cars and on Wednesday 233 ears. It is to be remembered that Tuesday was a record day for the entire year. On no other one day were so many ears of perishables unloaded.
The Carmack amendment of June 29, 1906 (U. S. Comp. St. sections 8604a, 8604aa), extends to failures to transport with reasonable dispatch and under it there can be a recovery from the initial carrier for loss, damage, or injury for such failure although on the line of the connecting carrier. (N. Y. P. & N. R. Co. v. Peninsular Exchange, 240 U. S. 34, 60 L. Ed. 511, 36 S. Ct. 230, L. R. A. 1917a, 193.) And so the defendant must answer for any negligence of the Pennsylvania railroad. Here, as in all cases, the burden is upon the plaintiff to show the right to recover. That is, to show that the carrier failed to deliver the goods within a reasonable time. When it has done this, and not before, it is entitled to a judgment, unless the delay is satisfactorily explained. Railroad Company v. Chandler, 129 Va. 695, 106 S. E. 684; 10 C. J. 301. One adequate excuse for delay is unusual press of business.
“The rule supported by the weight of authority is that if the carrier has a reasonable equipment for
To require carriers to be prepared at all times to handle with promptness an extraordinary amount of business would be to place upon them an intolerable burden. It would necessitate extraordinary facilities in part unnecessary under normal conditions and for which the public would ultimately have to pay. All that is required is that they shall be reasonably equipped to handle with fair dispatch business normally to be expected. In Empire Transp. Co. v. Philadelphia & R. Coal, etc., Co., 77 Fed. 919, 23 C. C. A. 564, 35 L. R. A. 623, it was said:
“Our reason teaches that the time that is reasonable under ordinary circumstances — that is customary time —is always unreasonable under extraordinary circumstances.
“If the extraordinary circumstances can never be considered, then the charterer must always unload vessels that arrive under unusual circumstances in an unreasonable time. If there was authority for such a proposition, we should hesitate long before adopting it. We think there is none.”
It may be said in passing that the bills of lading expressly provided that there was to be no undertaking to transport for any particular market and, indeed, had there been any such provision, it would have been unlawful. Eastern Shore Produce Exchange v. N. Y. P. & N. R. R. Co., 141 Va. 611, 126 S. E. 674; C. & O. Ry. Co. v. Ruckman, 115 Va. 493, 80 S. E. 496; Chicago & Alton R. Co. v. Kirby, 222 U. S. 155, 56 L. Ed. 1033, 32 S. Ct. 648, Ann. Cas. 1914a, 501, and thus we are brought back to the test of reasonableness.
If this delay was unreasonable then the adequacy of the defendant’s explanation must be determined.
The trial judge may have been of opinion that this freight was forwarded to destination with what would have been reasonable expedition under normal conditions; that there was in no aspect of the case any unreasonable delay, and he may have thought that though there was such delay yet that it was excused by reason of the conditions that then obtained. For reasons which appeared to him sufficient 'he set aside the verdict of the plaintiff and under section 6251 of the Code entered final judgment for the defendant.
If this was error the plaintiff must show it.
“It is incumbent upon the plaintiff in error here to show error on the part of the trial judge in setting aside the verdict and entering judgment on the evidence.” Kendricks v. City of Norfolk, 139 Va. 702, 719, 124 S. E. 210, 215.
Judge Burks, in Ricketts v. J. G. McCrory Co., 138 Va. 548, 121 S. E: 916, said:
“A verdict which has been disapproved by the trial judge is not entitled to the same weight on appeal as one that has been approved by him. DuPont v. Taylor, 124 Va. 766, 98 S. E. 866. The very fact that he is given the power to set aside a verdict as contrary to the evidence necessarily means that he must, to some extent at least, pass upon the weight
“But this does not mean that he can set aside a verdict merely because if on the jury he would have found a different verdict. He must be satisfied from the evidence adduced either that there was no evidence to support the verdict, or that the verdict was plainly contrary to the evidence. This conclusion must be drawn from the whole evidence in the case, but in arriving at ° his conclusions he has somewhat more latitude than this court would have in passing upon a verdict that was sanctioned by the judgment of the trial court.”
The fact that there is some evidence to support the verdict is not in itself sufficient to demand confirmation at the hands of the trial judge. If that was all that was necessary we would come back to a demurrer to evidence and the power given would be no power at all. He can and should act when the verdict is against the clear weight of evidence. Such a rule tends to fair judgment. Appellate courts from their angle of detachment gain in perspective, but lose something in local color and much “that floats in the larger meaning of the voice.”
In this case Mr. Upton, who lives in Norfolk, stated that he was familiar with the terminal facilities of the Pennsylvania railroad in New York and that
We are of opinion that the railroad acted with reasonable dispatch.
The concluding argument upon this point and the one stressed at the hearing was that there is nothing to show any attempt was made to use pier 27 at all and that had this been done there would have been no delay. It is a matter of common knowledge that the Pennsylvania railroad is one of the major transportation systems in the country. Some provision in the nature of things had to be made for its business other than that in judgment and it could not have been expected that it should abandon all its operations and clear out every pier to handle this unusual influx of potatoes, which, after all, is not a particularly perishable commodity. It went to the limit in giving this precedence over butter and eggs, actually unloaded, no longer under refrigeration and certainly equally perishable. Indeed, looking at the substance of things, the damage suffered is due rather to the fact that a particular market was missed than to the physical deterioration of a perishable commodity occasioned by delay, although it is of course true that when the delay is unreasonable the defendant must pity whether the commodity be perishable or not.
All that has been said about arrivals for Tuesday’s market applies mutatis mutandis to car No. 44,081, which reached Wednesday’s market.
Car No. 29,784 was unreasonably delayed at
Reversed.