168 P. 620 | Or. | 1917
delivered the opinion of the court.
It seems that the goods in question were part of a carload of the beverage received from a St. Louis concern by IT. Lottes of La Grande and reshipped by him from there to the plaintiff at Joseph. There is evi
“except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession) the carrier or party in possession shall not be liable for loss, damage or delay * * resulting from a defect or vice in the property. * * ”
“Where the destruction of or the injury to the goods is due to their inherent nature and qualities, or to defects therein, the carrier is not liable, if its own negligence did not occasion or contribute to the injury. * * With respect to perishable goods which themselves contain the elements of destruction governing their loss or deterioration, the carrier is not an insurer, and is no more liable for destruction or injury resulting solely from the inherent infirmity in the goods than for loss entailed solely by an act of God or of the public enemy, or by the carelessness of the shipper. * * It may perhaps also be stated as a general proposition that the carrier is not liable for loss, happening from the operation of natural causes without negligence or fault of the carrier”: 10 0. J., p. 121, § 148.
In Philadelphia etc. R. R. Co. v. Diffendal, 109 Md. 494 (72 Atl. 193, 458), the property in question was a shipment of peaches and the court stated the rule applicable in this language:
“The ordinary common-law liability of a common carrier as to most commodities committed to its eus*336 tody for transportation, is that of an insurer against all risks incident to the transportation, save such as result from the act of God or the public enemy, or the fault of the shipper, but with' respect to perishable goods, which themselves contain the elements of destruction occasioning their own loss or deterioration, the carrier is not an insurer, but is required to exercise reasonable care and diligence to protect the goods from injury while in its custody as well as to deliver them with dispatch to the consignee or connecting carrier.”
Schwarts & Co. v. Erie R. R. Co., 128 Ky. 22 (106 S. W. 1188, 32 Ky. Law Rep. 777, 15 L. R. A. (N. S.) 801), was a case concerning a carload of apples and the court held in substance that where the injury to the goods is due to their own inherent nature and from natural causes, such as freezing, without fault on the part of the carrier, he is not responsible. A shipment of potatoes which froze en route was considered in McGraw v. Baltimore etc. Ry. Co., 18 W. Va. 361 (41 Am. Rep. 696), and it was there decided that if the injury was due to the nature of the goods the carrier' was exempt from liability if he showed that he was free from negligence. Liability for damages to a shipment of wine from New York to St. Louis, which froze after its arrival at destination, was made to depend upon the carrier’s negligence in Wolf v. American Express Co., 43 Mo. 421 (97 Am. Dec. 406). In Baltimore etc. Ry. Co. v. Dever, 112 Md. 296 (75 Atl. 352, 21 Ann. Cas. 169, 26 L. R. A. (N. S.) 712, 721), the same rule is applied to a shipment of cattle where the animals acquired Texas fever en route from Missouri to Maryland. With this principle in mind it was' proper for the court to allow the defendant to show that the car was the best known means of transporting perishable articles in the winter-time. If the defendant acted with prudence commensurate with the
“A carrier receiving 30 barrels for transportation delivered the shipper a bill of lading certifying in the printed part the receipt of ‘the following described packages in apparent good order, contents and value unknown,’ which was followed in writing by the words ‘articles: 30 bbls. eggs.’ Held, that this was not a representation that the barrels contained eggs, and the carrier was not liable, as upon such a representation, to a transferee of the bill of lading, who upon the faith*338 and security of it paid the shipper’s draft, when the barrels in fact contained nothing but sawdust.”
See, also, Thyll v. New York etc. R. R. Co., 84 N. Y. Supp. 175; 1 Wds. & Phr., p. 442; 2 Idem, p. 1494; 4 Idem, p. 3124; Shepherd v. Naylor, 71 Mass. (5 Gray) 591. It is plain, therefore, that there was nothing in the terms of the bill of lading giving conclusive notice to the defendant of the inherent quality of the goods in question. The barrels were tendered to the defendant for transportation. It is not even alleged that they were in good order. In that connection it is held in Marquette etc. R. R. Co. v. Kirkwood, 45 Mich. 51 (7 N. W. 209, 40 Am. Rep. 453), that the shipper must show that the goods were in good order when they were delivered to the carrier because the latter ordinarily cannot open the packages and examine their contents. That case applies that doctrine in favor of every connecting carrier. It is not necessary in this instance to extend the rule so far, because the charge is against but one carrier on a single shipment. In Orunsten v. New York C. Ry. Co., 165 N. Y. Supp. 996, 997, it is said that the shipper must show that the goods were perishable; that the transportation could be made in a satisfactory manner; and that they were in good condition at the time of the shipment. In Sheble v. Oregon R. & N. Co., 51 Wash. 359 (98 Pac. 745), the court, speaking of the presumption that property once shown to be in good condition would be presumed to continue so, said, in substance, that the presumption goes to maintain the quality of goods only as it was at the time of shipment. The doctrine seems to be that the rule calling upon a carrier to show want of negligence when it delivers chattels in a damaged state is based on the presumption that articles once shown to be in good order continue in that con
“The jury are instructed that the bill of lading in evidence recites that the goods were in good order and condition when received by the defendant, and by said bill of lading the defendant contracted to deliver said goods in like condition at Joseph, Oregon, and if the jury believes from the evidence that the goods were not delivered in as good order and condition as when received by defendant, ordinary wear and tear, deterioration, “defect or vice in the property excepted, and that the plaintiff was injured, and has sustained damage thereby, then the plaintiff is entitled to recover, unless the jury believe from the evidence that the damage or injury to such goods resulted from some fault or negligence of the plaintiff or his consignor.”
.The instruction modifying the request of plaintiff reads thus:
‘ ‘ The jury are instructed that the bill of lading, offered in evidence, recites that the goods were in apparently good condition, but that the contents and condition of contents of packages was unknown to the railroad company, and by said bill of lading the defendant contracted to deliver said goods in like condi*340 tion at Joseph, Oregon, as the same were received by it at La Grande, Oregon; if the jury believe by the evidence that the goods were not delivered in as good order and condition as when received by defendant, ordinary wear and tear, deterioration, defect or vice in the property excepted, and that the plaintiff was injured and has sustained damages thereby, then the plaintiff is entitled to recover, unless the jury believe from the evidence, that the damage or injury to such goods resulted from some fault or negligence of the plaintiff or his consignor.”
The court correctly recited the terms of the bill of lading and otherwise gave the desired instruction. The one, the giving of which the plaintiff asked, required the court to state that the bill admitted that the goods were in actual good order and condition when in truth it said they were only in apparent good condition and that the contents were unknown. There is no error in this assignment.
“Before you are authorized to return- a verdict in favor of plaintiff for any sum, you must find from the evidence in this case, that when the shipment in question was tendered to the defendant at La Grande, Oregon, it was in good condition, and such finding cannot be based upon a conjecture or guess as to the condition of the shipment at the time of delivery to the defendant. And if you find, therefore, that there is no evidence in this case, that the goods were in good condition, when delivered to the defendant at La Grande, then you cannot return a verdict in favor of the plaintiff.”
The precedents already cited show that it is the duty . of the shipper to establish the condition of the goods at the time they were intrusted to the carrier. There
“If you find from the evidence in this case that the beverage contained in this shipment will depreciate and become damaged in this transit, due to its inherent nature, then I instruct you that the carrier cannot be held liable for any such deterioration or damage.”
This instruction must be read in connection with the whole charge to the jury. It may be that the beverage would become flat and stale with age, in which case
“Even though you find from the evidence in this case that the ‘tally’ in question was frozen npon arrival at Joseph, I further instruct you that you cannot return a verdict in favor of the plaintiff unless you find from the evidence alone, disregarding your personal views and opinions, that the faulty or flat condition of the tally was due entirely to the frozen condition.”
“I instruct you, gentlemen of the jury, that you cannot guess, speculate or presume that the plaintiff has suffered damage in this case, and unless you find from the evidence alone, that the plaintiff has actually been damaged by the negligence of the defendant, if you so find, then I instruct you that the plaintiff has not sustained the burden of proof in this case, and cannot recover, and unless you can from the evidence alone in this case determine with reasonable certainty the amount of damage,’then you cannot return a verdict in favor of plaintiff and against the defendant.”