217 Mich. 593 | Mich. | 1922
On March 23, 1918, at Webberville, Michigan, there was delivered to defendant a car lot of milk and cream in cans to be carried and delivered to plaintiff at Jacksonville, Florida. The shipment was placed in one of defendant’s regular express cars for car load shipments, was iced sufficiently to keep the product sweet for four days, was sent charges collect, the correct express charges being $760.50. Defendant’s agent stamped upon the express receipt given to the shipper .the words “subject to delay on account of congestion,” to which the shipper’s attention was then called. The ordinary time for carrying from Webberville to Jacksonville was three or four days. The car arrived in Cincinnati March 26th. On that day it was switched into a freight train, carrying glass, brick, hay, iron, etc., and completed, it seems, the journey in freight trains and reached Jacksonville April 5th, a delay of eight or nine days
To show congestion, defendant had testimony of congestion of less than car lot shipments, of a scarcity of express cars suitable for attaching to passenger trains and for express service, and of general congestion of freight, but none of such testimony approaches a justification or excuse for the delay here.
“If you find that the Adams Express Company did everything in its power to forward this cream, this car of cream, and that they were prevented by congestion on the road and such congestion as was indicated in the contract, then your verdict would be no cause of action.”
Was defendant prejudiced by the quoted and inadvertent statement as to the degree of care “did everything in its power?” As we have seen under the facts and the authorities cited plaintiff made a prima facie case, which is defined:
“A case made out by proper and sufficient testimony; one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side.” 31 Cyc. p. 1172.
It is a general rule that what is a reasonable time for transportation and the reasonableness and sufficiency of the excuse for delay are questions for a jury, but it is also the rule that “where the uncontroverted evidence clearly proves the issue, the question may be treated as one of law and passed on by the court without any encroachment on the province of the jury.” 10 C. J. p. 306, and cases cited in the notes.
There being no evidence to meet the prima facie case of plaintiff, nothing to explain or excuse the delay, or to justify the said deviation, the court might have held defendant negligent as a matter of law, hence, the error in the charge was not prejudicial.
There was evidence sufficient to sustain a finding that the cream and milk were sweet when delivered
Other questions raised have been considered. We find no reversible error.
Judgment affirmed.