141 Minn. 407 | Minn. | 1919
Action to recover damages sustained by the plaintiff through the delay of the defendant in the shipment of a carload of wheat. There was a verdict for the plaintiff and the defendant appeals from the order denying its motion for a new trial.
The wheat was shipped from Baker to Duluth via Sandstone. In ac
1. In the absence of a special contract a common carrier of goods is not an insurer of the time of delivery as he is of safe delivery. He must use diligence. He is liable for negligence. He must deliver within a reasonable time. He may excuse his delay. These are well settled general principles determinative of the common law liability of the carrier. Parsons v. Hardy, 14 Wend. (N. Y.) 215, 28 Am. Dec. 521; Delaney v. U. S. Exp. Co. 70 W. Va. 502, 74 S. W. 512; Palmer v. Atchison R. Co. 101 Cal. 187, 35 Pac. 630; Pittsburgh R. Co. v. Knox, 177 Ind. 344, 98 N. E. 295; American Exp. Co. v. Smith, 33 Oh. St. 511, 31 Am. Rep. 561; Johnson v. East Tenn. R. Co. 90 Ga. 810, 17 S. E. 121; Chicago R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. ed. 1033, Ann. Cas. 1914A, 501; Dobie, Bailments & Carriers, p. 360; 2 Hutchinson, Carriers, § 651, et seq.; 1 Moore, Carriers, p. 341; 10 C. J. 283; 5 Am. & Eng. Enc. (2d ed.) 254; 4 R. C. L. 737. There was no special contract of carriage between the plaintiff and the defendant.
2. The delay may be so great and unusual and unless explained so unreasonable as to put upon the carrier the burden of showing that it was not the result of a want of diligence. Mann v. Birchard, 40 Vt. 326, 94 Am. Dec. 398; Woodford v. Baltimore & O. R. Co. 70 W. Va. 195, 73 S. E. 290; Woods v. Toledo R. Co. 159 Ill. App. 209; Shoot v. Cleveland R. Co. 145 Ill. App. 532; McElwain v. Union R. Co. 101 Neb. 484, 163 N. W. 845; Jolliffe v. Northern Pacific R. Co. 52 Wash. 433, 100 Pac. 977; Cincinnati R. Co. v. Myers, 165 Ky. 700, 178 S. W. 1038; 5 Am. & Eng. Enc. (2d ed.) 254; 1 Moore, Carriers, pp. 358, 360; 4 R. C. L. 916, 917, 922; 10 C. J. 301.
The rule is one of practical convenience and is fair. It rests upon
3. In proof of the usual and reasonable time required for transportation from Baker to Sandstone the plaintiff offered evidence of five other shipments which it made in October and November following the September shipment. The record does not show that it made shipments other than these. They were in close proximity in point of time to the one involved and nothing indicates that shipping conditions were more favorable. The record does not suggest that they were chosen because they were particularly fortunate ones. Two of them arrived in two days, two in three days and one in four days. This evidence was competent. No very serious objection can be made upon the ground that it involved the investigation of facts collateral to the issue. See State Elev. Co. v. Great Northern Ry. Co. 133 Minn. 295, 158 N. W. 399. The plaintiff made use of the evidence which it had at hand. The issue was whether this particular shipment moved with usual and reasonable promptness. This was one way of showing that it did not.
4. It is hardly to be denied that the shipment was unusually delayed. The defendant offered no evidence to show the usual time of transportation. It offered nothing to show- what time was needed under shipping-conditions as they were. It was in position to prove the fact. Considering the long delay we think the case is within the rule stated in paragraph 2 and that the burden was upon the defendant to show that the delay was not occasioned by its negligence.
5. The defendant undertook to show that it was diligent. This was the principal question litigated. It traced the movement of the car from the time it left Baker until it arrived at Sandstone and accounted for its delays. At Alexandria it was set out because of a hot-box and it stayed there something more than a day. At Sauk Center there was
The court struck out the evidence relative to the hot-box and the delays consequent upomit. The striking out of this evidence presents a question not free of trouble.
We are not prepared to say that a carrier must conduct its railway operation so efficiently as to avoid a hot-box and that it- is liable for every incidental delay caused thereby. Such is the claim of the plaintiff. Its specific contention is that the existence of a hot-box imports negligence and that delay caused by a hot-box can never be excused. We do not so hold. We are not dealing with a case where a carrier is liable as an insurer subject to the well-recognized exceptions. The defendant however was required to exercise diligence. No effort was made to repair the hot-box at Alexandria. The evidence is that a handy-man could put in waste and oil in five minutes. This is a usual remedy and it is sometimes effective. There is nothing to show that it would not have been useful in this instance. The car stayed at Alexandria something more than a day. It was more than two days at St. Cloud. The repairs made there required some six or seven hours. The lack of diligence in caring for the hot-box after it developed is so marked that we are of the opinion that the court did not err in striking out the evidence upon the ground that it furnished no excuse.
There are no other matters requiring particular mention though some are discussed in the briefs. The court submitted the question of negligent delay to -the jury and its finding is sustained. It is fairly clear that
Order affirmed.