119 Wash. 119 | Wash. | 1922
— By this action the plaintiff seeks to recover of the defendant $2,395, as demurrage.
The defendant owns and operates a large sawmill plant located on or near the Spokane river, where it flows through the city of Spokane. The plaintiff is a common carrier railroad. One of its main lines enters Spokane, and it has various spur or side tracks located on the land forming the site of the defendant’s mill plant. One of these spur or side tracks leads to or alongside the bank of the river. Cars loaded with
On May 13, 1917, the plaintiff delivered on the unloading spur track certain cars loaded with saw logs. On that date a large freshet was running in the Spokane river, and during that day it became so great that the banks of the river were overflowed, and from that time on until sometime in the following month the river was unprecedentedly high and most of the defendant’s mill premises were under water, and the unloading spur was for the most.part covered by from two to five feet of water. On days subsequent to the 13th of May, and while the river was still in freshet, the plaintiff brought into Spokane other cars loaded with saw logs, consigned to the defendant. Because of the high water conditions it was unable to put these cars on the unloading spur or within the yard of the defendant, consequently they were all left at places outside of the defendant’s premises, and at points where they could not be unloaded. During all of this period there were eight loaded cars on the unloading spur, and some twenty-two loaded cars which had been left at places outside of the defendant’s mill premises. It is on these thirty cars that the plaintiff seeks demur-rage. There was a judgment dismissing the action, and the plaintiff has appealed.
While the situation with reference to the other eight cars is quite different from that concerning the twenty-two cars just mentioned, yet we are of the opinion that there was no delivery of those cars so as to start the running of demurrage. As we have already said, those eight cars were placed on the unloading spur before, but on the day, the river began to overflow its banks.
Parker, C. J., Fullerton, Mitchell, and' Tolman, JJ., concur.