American Ry. Exp. Co. v. Peninsula Produce Exch.

• Decision Date: 12 January 1923
• Docket Number: 110.
• Parties: AMERICAN RY. EXPRESS CO. v. PENINSULA PRODUCE EXCHANGE.
• Court: Maryland Court of Appeals

121 A. 240

142 Md. 422

AMERICAN RY. EXPRESS CO. v. PENINSULA PRODUCE EXCHANGE.

No. 110.

Court of Appeals of Maryland

January 12, 1923

Appeal from Circuit Court, Wicomico County; John R. Pattison and Joseph L. Bailey, Judges.

"To be officially reported."

Action by the Peninsula Produce Exchange against the American Railway Express Company. Judgment for plaintiff and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, ADKINS, and OFFUTT, JJ.

Frederick W. C. Webb, of Salisbury (Woodcock & Webb, of Salisbury, on the brief), for appellant.

James E. Ellegood, of Salisbury (Ellegood, Freeny & Wailes, of Salisbury, and James M. Crockett, of Pocomoke City, on the brief), for appellee.

THOMAS J.

This suit was brought in the circuit court for Wicomico county by the Peninsula Produce Exchange, Incorporated, against the American Railway Express Company, a corporation, to recover a loss alleged to have been sustained by the plaintiff by reason of the failure of the defendant to transport and deliver with reasonable dispatch a carload of strawberries shipped from Queponco, in Worcester county, Md., and consigned to Frost & McNab, Jersey City, N. J.

The plaintiff offered evidence tending to show that the berries were delivered to the defendant at Queponco on Saturday, June 12, 1920, and that the car containing the berries, initialed and numbered P. L. 608380, was attached to a passenger train which left Queponco at 2.21 p. m., and which, according to the schedule and the usual running time of such trains, was due to arrive at Hudson Terminal, Jersey City, at 11.21 o'clock the same day; that, in accordance with its custom, the plaintiff notified the consignee, Frost & McNab, by wire of the shipment and the number of the car that when carload shipments arrive at Jersey City they are switched from the track on which they arrive to the delivery track, where they are delivered to and unloaded by the consignee or his agents; that it usually takes the defendant from an hour to an hour and a half to have a car switched or moved to the delivery track; that the agent or truckman of the consignees, after receiving the telegram from the plaintiff, went over to the Hudson Terminal Sunday night for the berries, but found that the car had not been placed on the delivery track; that about 3 o'clock Monday morning the defendant or one of its agents telephoned to the store of Frost & McNab that the car was ready for them, but that when the consignees' truckman arrived at the terminal a few minutes later the car had not been placed on the delivery track where he could unload it; that, if he (the truckman) had waited there for it to be placed on the delivery track it would have been too late for Monday morning's market and, as the car was a refrigerator car, and the berries would keep better in the car than they would have kept if taken out of the car, he left the car until Monday night, when he unloaded it in time for the Tuesday morning market; that the market is from 12 o'clock at night to 5 o'clock in the morning, and the best market is between 1 and 4 o'clock in the morning; that if the car had been delivered in time for the Monday morning market the berries could have been sold at from 20 to 30 cents per quart, and that by reason of a fall in the market value of the berries they were sold on the morning of the 15th of June at from 15 to 22 cents per quart.

The defendant offered evidence tending to show that the car in question left Queponco at 1:45 o'clock in the afternoon of June 12th, and was attached to a special express train which arrived at Jersey City at 10:45 o'clock Sunday morning; that it arrived on track 5 in the passenger station, and was ordered by the yard foreman of the defendant at 12 o'clock to be placed on track 8 in the local yard, so that it could be moved from there and placed on the delivery track. One of the yard foremen testified that the car was on track 8 when he left the yard at 5 o'clock that evening; that about 5 o'clock that evening some inexperienced men in the employ of the Pennsylvania Railroad Company, while pushing 2 carloads of coal on the coal wharf, pushed one of the coal cars off the wharf, and blocked track 8 for several hours; that it took about five hours to clear up the wreck, and that when he returned to the yard again about 11 o'clock that night the wreck was not fully cleared up; that there are special tracks for delivery "of car lots" of strawberries to truckmen; that there was one track for such purpose during the day and more than one at night. Another yard foreman of the defendant, who was on duty from 5 p. m. to 4 o'clock in the morning, testified that the car in question was on track 8 at 6 o'clock Sunday evening; that the wreck of the coal car was cleared up about 1:30 o'clock standard time, or 2:30 o'clock daylight saving time, Sunday night; that the car, with 11 other cars, was placed on the delivery track about 3 o'clock Monday morning; that there was a strike of the Pennsylvania Railroad switchmen at that time, which had been in existence since the 9th of April; that the railroad company was employing inexperienced men, and working two crews instead of three, and that they could not move the cars as fast as they could have moved them with experienced men. Another employee of the defendant testified that there were 2 carloads of berries consigned to Frost & McNab placed on the delivery track about 3 o'clock Monday morning; that the other car was car N. P. 96129, and that the truckman of Frost & McNab unloaded car N. P. 96129 at about 4 o'clock that morning, and left the car in question in this case until Monday night. In rebuttal Frost & McNab's truckman testified that it would be impossible to unload 11 cars on the delivery track at one time, as it would not be possible for eleven trucks "to back in there all at once."

At the conclusion of the evidence the plaintiff offered seven prayers, the first, second, fourth, and seventh of which were granted, and the defendant offered nine, the first of which was granted; the fourth was granted as modified, and the others rejected. The defendant excepted to the granting of the plaintiff's prayers and to the rejection and modification of its prayers, as it did to a number of rulings on the evidence, and has brought this appeal from a judgment in favor of the plaintiff.

The first, second, third, fourth, fifth, and sixth exceptions were to the testimony of a witness as to the schedule time for the arrival of the train to which the car of berries was attached in Jersey City, and the usual and ordinary time consumed in transporting a carload of berries by express from Queponco to Jersey City. The witness had stated that he had been the agent of the plaintiff for a number of years as sales manager; that in the performance of his duties he gave another agent of the plaintiff the billing instructions for the cars shipped, and that when the billings were made out he wired the consignee, giving the car number and contents, and the consignee wired him of the arrival of the car; that he had frequently been...