Smith v. Baltimore & Ohio Railroad

223 Pa. 118 | Pa. | 1909

Opinion by

Mr. Justice Fell,

This was an action to recover damages for the loss of four carloads of grain delivered to the defendant at Chicago for carriage to Pittsburg. The cars were not taken into Pittsburg but were placed in the defendant’s hay and grain yard on the opposite side of the Allegheny river, at South avenue, Allegheny City. While the cars were in this yard awaiting delivery to the plaintiff, there was a flood in the river, the yard was overflowed and the grain was injured. It was averred in the statement of claim that the cars were diverted from the usual and proper course of transit by placing them in the South avenue yard instead of carrying them to the defendant’s yard in Pittsburg, and that the defendant was afterwards negligent in not removing the cars to a place of safety.

In support of the assignments of error it has been earnestly argued (1) that there was no breach of duty in placing the cars in the South avenue yard and that the jury should have been so instructed; (2) that there was no evidence to warrant a finding of negligence on the part of the defendant in not removing the cars, that caused or contributed to the injury complained of.

It was specified in the bill of lading that the grain should be carried to “the usual place of delivery at said destination.” Pittsburg and Allegheny, although distinct municipalities separated by a river, were commercially one community. The undisputed evidence was that for seven years prior to the flood all consignments of grain for delivery at Pittsburg, unless specially consigned to consignees who had private sidings, had been placed in the South avenue yard for inspection and reconsignment; that this usage was well understood and acquiesced in; that the plaintiff knew of it and expected the cars to be placed there.

Since there was practically no dispute as to this matter, at the close of the testimony there might have been a distinct instruction withdrawing the question of diversion from the jury. This would have cleared the atmosphere at the trial, and confined and directed the attention of the jury to the only quesr tion remaining, that of negligence. It is argued that it was neither distinctly withdrawn nor distinctly submitted, and that the verdict may have been based upon a finding as to it, unsupported by competent evidence. It was in effect withdrawn by the charge, in which the learned trial judge stated that the custom of delivering at the South avenue yard had been established to his satisfaction by the plaintiffs’ witnesses, that this was a delivery within the meaning of the law because agreed to by the parties, and that the only question remaining was as to negligence. The jury must have understood from this instruction that the question of diversion was eliminated.

The main contention of the defendant was that the flood was extraordinary and unprecedented, and that adequate measures had been taken to guard against any danger that could reasonably have been anticipated. The cars were placed in the yard at different times on March 13, 1907. There was then a flood in the river, and at places the defendant’s tracks were covered with water. A rise of thirty feet would put water in the bottom of the freight cars in the yard. The water rose constantly all day, and at 5 v. m. the yard master had information that the water would rise twenty-six or twenty-eight feet and possibly higher, and he provided for a rise of thirty feet. At 2 a. m. on the fourteenth the water had risen a height of twenty-eight feet and was still rising. An attempt was then made to move the cars, but it was unsuccessful because logs and rafts had been washed on the tracks and the cars were derailed by them. The yard master relied for information on the local forecaster of the weather bureau and the manager of a river coal company, whose experience and knowledge gave weight to his opinion. These were probably the best authorities available. The yard master relied upon them implicitly and went to his home at five o’clock on the thirteenth and his assistant left at nine o’clock.

The assistant yard master testified: “The water was rising rapidly; we expected it at any moment to shut us out. The warning we got was that we would get from twenty-six to twenty-eight feet. That was all the warning we got except they said of course i.t may go higher. This is the information they gave; and we didn’t go on what 'may be.’” A witness called by the defendant, who for twenty-seven years had been the manager of steel works a quarter of a mile below the defendant’s yard, testified that he had received information from the weather buréau and the river coal company at five o’clock on the thirteenth that the rise of water would not exceed twenty-seven feet; but that the forecast was so at variance with' the actual conditions, there having been a heavy snowfall and continuous rain and a rapid rise of the river, that he did not believe it correct and protected his property against a rise of thirty-two feet during the night and thirty-four feet the next morning.

The defendant’s employees were not required to guard against a rise of water not reasonably to be expected. But they knew that floods in which the river rose over twenty-eight feet were not unusual. It had been above that height four times in the five preceding years, and within that period had reached a height of 32.4 feet. They knew that during the day there had been a continuous and rapid rise of the river. Whether with this knowledge they were negligent in placing implicit reliance on the reports received from the weather bureau and the river coal company and in not removing the cars to higher ground, was a question not to be withdrawn from the jury.

The judgment is affirmed.