The trial judge instructed the jury that:
. “Thе measure of plaintiff’s damage [if entitled] would be the difference between the reasonable mаrket value of the cucumbers as they actually arrived in Salt Lake City and the reasonable market value of the cucumbers, had there been no fault on the part of the railroad company; in other words, the reasonable market value of the cucumbers had they been in the condition they would have been in, had there been no fault on the part of the railroad company.”
The evidence showed that the freight charges had not been paid on the shipment in question, except to the extent оf $172.72, the proceeds of the sale of the cucumbers by the delivering carrier, and that there remainеd due for transportation the sum of $316.51. That being true, under all the authorities, the market value of the cucumbers at Salt Lake City, the point of delivery, was subject to a deduction of the unpaid freight charges — that bеing the net value at that point. Echols v. L. & N. R. R. Co.,
The transportation of a commodity from the point of prоduction to other points and markets is an element that enters into and forms a part of its value at thе latter places; and the shipper who has not paid the carrier’s charges therefor cаnnot justly have the benefit of an increased value contributed by the labor of the carrier, in an action against the latter. The principle does not depend upon the question of set-off or reсoupment, and it is not necessary for the carrier who invokes it to claim the freight charges by formal plea, unless a judgment therefor is sought against the shipper-^or consignee — plaintiff. The case of Southern R. Co. v. Cooper,
“If the logs had been delivered to the plaintiff at Mobile, the freight paid for carrying them to that place would have been an element of their value therе. If he is permitted to recover their market value there, without any deduction for that item of expense, he recovers as damages an amount greater than the actual loss he sustained by the defеndant’s failure to deliver.”
The instruction complained of was erroneous in not requiring the deduction of unpaid freight charges from the market value of the shipment at Salt Lake City. But the error does not appear to have been prejudicial to defendant, since the jury awarded to plaintiff as damagеs only the invoice price of the cucumbers f. o. b. the cars at the point of shipment ($528) and disregarded 'the value at Salt Lake City, which was shown to be $1,500 or upwards.
In the absence of any evidence tending to show that the solid doors of the ventilator car had been closed during the transit, it was improper to аllow witnesses to be asked by plaintiff as to what effect it would have on the cucumbers, “if the screen doors or the ventilators should be closed for any considerable distance during the transit of *150 the cucumbers”; and, “Ii those doors should jar to in transit, what would be the effect o£ excluding the air from circulating through the сar?” But the witness who answered the first question stated that the effect would be very little, if any; and the witness who answеred the latter question stated, quite unintelligibly, “It would.” We do not think that any material harm could have resulted tq defendant from these answers, and hence the errors in allowing the questions would not justify a reversal of the judgment.
It is insistеd with much force ■ and plausibility that defendant was entitled to the general affirmative charge, as requеsted, this on the theory that defendant has met the burden imposed upon it by law of showing that the deterioration and decay of these cucumbers apparent upon their arrival at Salt Lake City were not the result of any negligence on its part as carrier, but were due to causes inherent in them, either to the natural tendency to decay during their necessarily long period of transit or to the morbid process of a vegetable disease with which they were affected.
The shipment was made on June 6, 1924, and arrivеd at Salt Lake City on June 13, following. During the transit sharp variations of temperature must have been encоuntered — a recognized cause of decay in vegetables and fruits containing, as do cucumbers, а large percentage of water. It seems to us that the more reasonable conclusion is that the condition of this shipment, after seven days of transit'from a comparatively low, hot country to а much higher and cooler one, was due to natural processes for which the carrier is not resрonsible.
But the conclusion, either way, rests in inference, and this inference was one for the jury to draw frоm all the facts in evidence and cannot be declared as a matter of law by the court. Hence the general charge was refused without error.
Finding no reversible error in the record, the judgment will be affirmed.
Affirmed.