Lamb v. Chicago, Milwaukee & St. Paul Railway Co., 101 Wis. 138

Lamb v. Chicago, Milwaukee & St. Paul Railway Co.

101 Wis. 138 | Wis. | 1898

BaRdeek, J.

The most important ground of contention in this cáse is that the court ought to have taken the case from the jury and directed a verdict for the defendant. The berries were shipped under a contract that the carrier should not be liable for any damage to the property by causes beyond its control, or by changes in the weather, heat, or decay. Stipulations limiting the common-law liability of the carrier have been recognized and hpheld in many cases in this court. See cases cited in Schaller v. C. & N. W. R. Co. 97 Wis. 31. But the uniform tenor of the decisions is that such stipulations are invalid, in so far as they attempt to exempt the carrier from the consequences of its own negligence (Black v. Goodrich Transp. Co. 55 Wis. 319; Abrams v. M., L. S. & W. R. Co. 87 Wis. 485; Loeser v. C., M. & St. P. R. Co. 94 Wis. 571); that is to say, the shipper, notwithstanding such conditions, may recover by showing that the exercise of reasonable care and skill on the part of the carrier would have avoided the loss.

It is insisted by defendant that no evidence was offered ■to show what condition the berries were in when received by it, and therefore the case should have been taken from ■the jury. The evidence is conclusive that the berries were in good condition when shipped from South Haven; that they were loaded into a cool car, which had been thoroughly *142iced, and that berries so cared for 'would not need further attention, even in the hottest weather, until the following afternoon. It also appears that defendant’s agents knew that the Michigan Central was the only road out of South Iiaven leading directly to Chicago; that they had due and timely notice that the car had been shipped; that they had notice of the character of the freight very soon after the car was received; that in the usual course of business the car should have been received about 1 or 8 o’clock in the morning; that it was in fact received by defendant at 1:45 in the afternoon, and was allowed to remain on the track at the Union Stock Yards until about 6 o’clock; that it was then taken to the Western Avenue yard, and inspected; and that it was about 9, or half past, when they finished icing the car. It further appears that on Sunday the defendant ran two, and sometimes three, transfer trains between the Union Stock Yards and Western Avenue; that the transfer would ordinarily be made more speedily on Sunday than week days; that it was not usual to permit perishable freight to remain upon the track at the Union Stock Yards, but they would notify the yard master, and he would send an engine for the car; that this was frequently done without waiting for any regular train to start out from Western Avenue; that defendant’s facilities for icing cars were at its Western Avenue yards; that the transfer was usually made in from forty-five minutes to an hour and a quarter; that when this car was inspected the boxes were found about one third full of ice; that when.the ice is low refrigeration is less and the fruit near the top of the car is liable to damage; that defendants solicited this kind of business from plaintiff, and offered, as-an inducement to his shipping over their line, if he would give notice of intended shipments, steps would be taken to-trace the car by wire, and see that it was promptly handled and taken care of; and that the freight rates were more than double the rate charged for apples.

Considering the time of the year, the character of the-*143freight, the rate charged, and all the attendant circumstances, it is quite evident that the defendant became charged with a considerable degree of vigilance and diligence in the performance of its duties. The defendant does not deny its duty in this respect, but sharply insists that there was no evidence to go to the jury on the question of its negligence. It is true that plaintiff did not produce any direct proof of the condition of the berries at the time they were received by the defendant. But it did show that nearly all of the berries had been picked on the day of shipment; that they were in good condition when loaded into a cool, well-iced car; and that the ice in the car was sufficient to preserve them until some little time after they were received by defendant. Erom the very nature of the case, it was impossible for plaintiff to go further. The car was under seal in transit. It was impossible for him to have made an examination of it at any time before it was received by him at La Crosse. We think the evidence was sufficient, jyrima; fade, to require a submission of the case to the jury, and, in absence of any showing by the defendant as to their condition, they would have a right to find as a fact that they were in good condition at that time. The evidence on that point would be peculiarly within the knowledge of the defendant. It had the possession of the car, and an opportunity to, and did, inspect it. It had means of information impossible to the plaintiff, and to say that he must make affirmative and positive proof of the condition of the berries, at that time is to say that he is without remedy in cases of this kind. He had made proof of facts and circumstances-which, if true, gave rise to a legitimate and proper inference that the berries were in the same condition when received by defendant that they were when shipped. This was really all the proof the nature of the case permitted to the plaintiff, and enough to shift the burden upon the defendant as to-this particular fact. Laughlin v. C. & N. W. R. Co. 28 Wis. *144204; Beard & Sons v. I. C. R. Co. 7 L. R. A. 286, 79 Iowa, 815; Leo v. St. P., M. & M. R. Co. 30 Minn. 438; Brintnall v. S. & W. R. Co. 32 Vt. 665; Dixon v. R. & D. R. Co. 74 N. C. 538; 4 Elliott, R. R. § 1450.

But it is said the evidence shows that the loss occurred from the peril expressly stipulated against,— that of'heat and decay,— and that under the rule announced in Schaller v. C. & N. W. R. Co. 97 Wis. 31, the burden of proving negligence was upon the plaintiff. Grant this to be true. We hold that under the facts as stated there was certainly evidence in the case that warranted the submission to the jury. Defendant received the car at 1:45, and permitted it to stay upon the track in the stock yards until 6 o’clock, and did not ice it until between 8 and 9. When inspected, the ice was found to be about two thirds gone. The necessity of having the ice box filled for complete refrigeration was admitted, or not controverted. Can we say, as a matter of law, that' the defendant discharged its full measure of duty under the circumstances? We think not. It is not a case where the inferences to be drawn from the proof are all one way, or so conclusive as to leave the matter beyond serious •contention. The case was peculiarly one for the jury, and, if fairly submitted, their conclusion ought not to be disturbed. Notwithstanding the criticism of the counsel, we think the case was submitted to the jury under instructions that were most favorable to the defendant. The delay in transferring the car and filling it with ice was certainly a proper matter to submit to the jury under the testimony.

The reception in evidence of the telegram from the defendant’s agent Holmes to its claim agent, to the effect that when the car was inspected it was one third full of ice, that 3,000 pounds of ice were put in, and that the “ berries appeared in good order near doorway,” was more harmful to the plaintiff than defendant. The evidence shows that the car was inspected shortly after I o’clock, and the fact that *145the berries then appeared in good order was certainly not harmful to the defendant’s case.

The other objections are not of sufficient importance to require special mention. On the whole case, we see no reason for disturbing the judgment.

By the Gourt.— The judgment of the circuit court is affirmed.