167 Pa. 166 | Pa. | 1895
Opinion by
Ruppel, the plaintiff, by wire, had consigned to him at Pitts-burg, from New Orleans, a car load of potatoes; they were shipped 4th of June, and reached Pittsburg 10th June, 1892, being about six days on the way; before the car arrived, plain
The plaintiff brought suit for damages, averring negligence of defendant, in not, under the circumstances, moving the car .with reasonable dispatch to destination. The court submitted the question of negligence to the jury, who found for plaintiff, and defendant appeals. There are seven assignments of error which in substance embrace three questions: 1. Was there such evidencé of negligence as warranted the court in submitting that question to the jury? 2. If so, was there sufficient evidence that this negligence caused the damage .complained of?
This written contract only expresses what the law implies on the part of the common carrier, namely, that goods which it accepts, shall be transported with reasonable dispatch towards destination. Whether the contract has been kept is a question of fact. If there be contradictory evidence, or if the facts warrant opposite inferences the case must go to the jury. Here it was undisputed, that in the usual course of transportation this car ought to have reached Buffalo on Monday; other cars which started with it on the same train did arrive at that place on Monday; this car was delivered on Thursday, three days later; in about the same time from Pittsburg to Buffalo as from New Orleans to Pittsburg. It was not an unwarranted assumption on part of plaintiff, that reasonable dispatch was the ordinary and usual time taken for the movement of such freight between those points. Appellant’s counsel argues in pressing his assignment that there was not sufficient evidence of negligence; in his view there is, perhaps, no more accurate statement of what is reasonable dispatch, than that of Pollock, C. B., in Briddon v. G. N. Ry. Co., 28 L. J. Ex. (N. S.) 51: “ The contract was to carry the cattle to Nottingham without delay, and in a reasonable time, under ordinary circumstances.” Here it is argued, under ordinary circumstances the car would have been delivered on Monday, but because of the happening of a circumstance which could not be provided against, for it could not be foreseen — a hot box — it was nbt delivered until Thursday. There was evidence, that usually no degree of care in inspection or operation can guard against this obstruction to speedy transportation ; that a car in apparently good condition as to journals and axles, and properly lubricated, will at times have a hot box. And in so far as the delay was necessary because of a hot box, which could not with ordinary care have been provided against, the dispatch was reasonable. But then plaintiff replies to this, appellant accepted this car at Pittsburg after it had made the trip from New Orleans without inspection. The car inspector of defendant at East Brady, where it was repaired, testified the brass of the journal was broken, and that he thought the brass in the first place had not fitted the journal; that it was not the proper pattern. The car repairman for defendant at Oil City,
As to whether the delay resulted in the loss, the evidence on that point, though not clear, is not purely conjectural. No less than three witnesses, of experience in shipping and dealing in potatoes, testify in substance, that the condition of these when the car was opened at Buffalo indicated, that decay had commenced within two or three days. If the loss resulted from not being taken out of the car two or three days sooner, and these two or three days were beyond that reasonable time which under the circumstances the law allowed the carrier, the defendant was answerable for the loss. This question was also properly submitted to the jury on the evidence.
How is the loss to be measured ? The contract stipulates that the market price of the potatoes at Pittsburg at date of shipment is to be the measure of damages. If the loss be not attributable to the negligence of the carrier, then this condition of the contract is binding on the consignor. There is no rule of public policy which forbids it. But the verdict of the jury has determined as a fact that the loss was occasioned by the negligence of defendant. The carrier cannot by contract in this state limit his liability in case of negligence. The law
The fact that Buffalo was not on defendant’s line and that its terminus was Oil City, does not in view of this contract and the facts fix the market price at Oil City as the measure of damages. Defendant accepted the car for transportation safely to Buffalo, and charged a through freight rate per 100 pounds from Pittsburg to that point; it was not answerable for any default or neglect beyond its own line, but it undertook to carry safely and with reasonable dispatch on its own line, and deliver to the connecting road on the route to destination. The verdict of the jury finds it did not carry with reasonable dispatch on its own line towards destination, and that this caused the damage sustained at Buffalo ; the loss there is therefore the measure of damages. Pa. R. R. Co. v. Plank Road Co., 71 Pa. 350, cited and relied on by appellant is clearly distinguishable from this case. The contract averred there on part of the company was to carry the lumber from sidings on its own road to Corry, at the end of it; from whence it was to be transported by the Oil Creek railroad to Titusville, twenty-six miles further. The plaintiffs did not claim there was any agreement,
In this case the shipment is by the bill of lading from Pitts-burg to Buffalo on a through rate; Oil City is not mentioned. This question now raised does not seem to have occurred to appellant at the trial in the court below; there was no evidence concerning it, and it was not mentioned in the written points. The only instruction asked on the subject in this particular is in defendant’s third point, thus: “ The measure of damages in this case is the market value of the potatoes at the time and place of shipment, and the freight paid to Buffalo, less the amount received for the potatoes at Buffalo.”
This the court affirmed, unless, the loss resulted from the negligence of defendant, in which case the Buffalo market would determine the measure of damages. But even if it had been raised by a prayer on part of appellant for special instructions, under this contract, and “ what reasonably might have been anticipated, and within view of the parties,” it ought not to have been affirmed.
What we have said disposes of all the assignments of error demanding notice. The judgment is affirmed.