Needham v. Boston & Maine Railroad, 82 Vt. 518

Needham v. Boston & Maine Railroad

82 Vt. 518 | Vt. | 1909

Watson, J.

No claim for damages is based upon any alleged negligence of the Rutland Railroad Company, the initial carrier, nor is any recovery sought against it. Hence no notice to that company of the plaintiff’s claim was required by the contract under which the shipment was made, and a refusal of the request to charge that the plaintiff was bound to furnish both that company and the defendant a statement of his claim in writing verified by his affidavit within five days from the time the stock was removed from the ears was not error. Nor was the charge given on the subject-matter of that request erroneous. The court said no such notice was required. “Such notice”- was the notice to both railroad companies as stated in the request.

The plaintiff received the stock at its destination and gave the defendant his receipt therefor stating that the stock was received “in good order.” The defendant’s sixth request was that the plaintiff, having given the defendant such a receipt at the time he received the stock, cannot recover for any damage which he now claims was then apparent. - It is sufficient to say that this receipt did not conclude the plaintiff by estoppel or otherwise, consequently the request was unsound and properly disregarded. Nor is the exception to the charge as given on the subject-matter of the request available. Among other things thereon the court said the receipt was not determinative or conclusive. This portion of the charge correctly stated the law applicable to the case; and since the whole charge on that subject was not unsound, the exception cannot avail. State v. Sargood, 77 Vt. 80, 58 Atl. 971.

The evidence showed that a regular freight train of the defendant known as No. 540 was scheduled to leave Bellows Falls at 10.40 A. M., May 14, and was due to arrive at Union Market about 7 P. M. of the same day. The plaintiff claimed that his stock should have been forwarded on this train, if it was to reach the market in time so that no damage would be sustained. The *523stock was shipped from Cold River, a place a short distance below Bellows Falls, on the line of defendant’s road, on that train; but the train did not leave Bellows Falls until seven o ’clock on the evening of that day and arrived at Union Market between five and six o’clock the next morning — market day, too late, as plaintiff’s evidence tended’to show, for his stock to be tested and placed on the market that day. The eighth request was, that the defendant was under no legal obligations to start its train No. 540, scheduled to leave Bellows Falls at 10.40 in the forenoon, until it had a sufficient number of cars to make a train.

The court submitted the question to the jury whether under the circumstances disclosed by the evidence the defendant was justified in holding that train at Bellows Falls as it did. On that point the court said among other things: “I instruct you that that delay to that car (car containing plaintiff’s stock) was unusual in a legal sense; it was such a delay that we take the responsibility of saying that it was unusual in a legal sense and therefore the company takes the burden of proof of showing you that it was not through their negligence and that the delay was justifiable in the circumstances.” The court further said that the defendant was not obliged to run a special train with that ear. Defendant contends that the part of the charge above quoted is unsound in law, and that the error is reached by his exception to the charge as given on the subject-matter of the eighth request. It is a full answer to this contention that the part of the charge on the same subject, that defendant was not obliged to run a special train with that ear, was sound, and hence if falls within the holding already made that under a general exception to the charge on a particular subject, the exception is bad if any part of the charge covered by it is without fault.

By the defendant’s ninth request the court is asked to instruct the jury by way of an abstract proposition of law as to the validity of a contract fixing the value of the property or the rule for ascertaining its value in case of loss or injury, even if the carrier is guilty of negligence, etc. The damages claimed', and which the evidence tended to show were for failure of the defendant to deliver the cows at the place of destination in season for the local market on the day named, certain charges for feed, bedding, barn bills and keep of stock till the next market *524day, and a loss of so much per pound on the calves included in the shipment. The evidence did not show that any of the cattle shipped were lost. Therefore as a part of the request had no application to the facts in evidence, the whole was properly refused. Winn v. Rutland, 52 Vt. 481; Weeks v. Lyndon, 54 Vt. 638.

It is urged that the motion to set aside the verdict should have been granted as contrary to evidence and to the weight of evidence. A copy of the evidence- has not been furnished us,' hence we cannot say that the motion was not properly overruled.

It is further argued that the case shows the damages were assessed not in accordance with the terms of the contract under which the shipment was made, but much in excess of what could be recovered thereunder. However this may be, it was not one of the grounds stated in the motion, and it is not considered.

Judgment affirmed.