Annese v. Baltimore & O.R. Co.
| Decision Date | 01 February 1921 |
| Docket Number | 3374. |
| Citation | 105 S.E. 807,87 W.Va. 588 |
| Parties | ANNESE v. BALTIMORE & O. R. CO. |
| Court | West Virginia Supreme Court |
Submitted January 35, 1921.
Syllabus by the Court.
The complaint filed in a justice's court answers all the requirements of chapter 50 of the Code (secs. 2555-2794), if it be sufficient to enable a person of common understanding to know what was intended.
Notwithstanding a bill of lading stipulates that property destined to be taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at the risk of the owner after unloading from cars or vessels, the carrier will not be relieved thereby from his gross negligence in unloading in the mud and rain at an unreasonable hour of the night goods consigned to such point when the consignee is not present or could not reasonably be expected to be present, and when it is manifest that such goods because of their character will be certainly destroyed or rendered useless by the elements.
A carrier cannot by such contract ordinarily relieve itself from liability for negligence in the performance of its duties as carrier.
When confronted with circumstances due to the elements rendering a carrier unable to make safe delivery of goods consigned to a particular destination, it cannot by contract excuse itself for its negligence in wantonly discharging said goods at such point in mud and rain in a place where they will certainly be destroyed and rendered useless.
When a complaint before a justice states a good cause of action, not excepted or demurred to, and on the trial evidence is admitted without objection on a cause of action not clearly stated in the complaint, the statute of jeofails, after verdict and judgment, will cure any defect of pleading.
Error from Circuit Court, Barbour County.
Action by Stefan Annese against the Baltimore & Ohio Railroad Company before a justice of the peace. Judgment for plaintiff on appeal to the circuit court, and defendant brings error. Modified and affirmed.
Arthur S. Dayton, of Philippi, for plaintiff in error.
Albert G. Jenkins and J. Blackburn Ware, both of Philippi, for defendant in error.
In an action begun before a justice, and tried before the circuit court upon appeal, plaintiff obtained a verdict and judgment for $150.00, interest and costs, the judgment before the justice being $168.49.
The cause of action was the alleged negligence of defendant in the delivery of certain merchandise shipped to him from certain points and consigned to him at a station known as Century No. 2 Mine, on defendant's railroad in Barbour County, consisting of flour, sugar, salt, and other perishable goods. The acts of negligence alleged and relied on in the complaint and in plaintiff's evidence before the court and jury were that defendant maintained no building, station, shed or other structure at said point Century No. 2 Mine, to protect goods from the elements after being unloaded from its railroad cars; that the goods sued for and so consigned were, at an unreasonable hour of the night, to wit, at about two o'clock in the morning, out of business hours, and when defendant had no right to expect plaintiff to be present to care for such goods, and without notice to him that the goods would be so transported and unloaded at such unreasonable hour, and without taking reasonable precaution to protect the same, then and there unloaded the goods at said destination while it was then and there raining, with notice and knowledge of the character of the goods and of their liability to be destroyed and injured by the water, which delivery, because of defendant's negligence, did not constitute legal and proper delivery thereof, and whereby a large part of said goods were damaged destroyed and rendered useless, and whereby plaintiff was damaged and sustained loss in the amount sued for, namely $168.49.
We think this informal complaint in an action begun before a justice stated a good cause of action. It was sufficient to enable a person of common understanding to know what was intended; that is all that is required by chapter 50 of the Code (secs. 2555-2794) relating to pleadings in justices' courts. O'Connor v. Dils, 43 W.Va. 54, 59, 26 S.E. 354; Poole v. Dilworth, 26 W.Va. 583; Toledo Scale Co. v. Bailey, 78 W.Va. 797, 802, 90 S.E. 345; State v. Emsweller, 78 W.Va. 214, 88 S.E. 787.
The defendant pleaded and relied on t he following provision of the bills of lading:
"Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloading from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves or landings shall be at owner's risk until the cars are attached to and after they are detached from trains."
And it is further averred that if loss or damage had been sustained by plaintiff, it had occurred after the goods had been unloaded from defendant's cars or rehandled; that it maintained no agent at the point of destination of the goods, at which point there was a local custom that shipments should be piled by defendant's tracks when unloaded, at the owner's risk.
The evidence shows that the freight train which carried plaintiff's goods was what is called a pick-up train, of irregular schedule; that formerly it was due to arrive at Century No. 2 Mine about five o'clock in the evening, but at the time of the shipment of plaintiff's goods, in January, 1915, and for some time prior thereto, its schedule brought it to that point about five o'clock in the morning; but the evidence shows that on the morning the goods sued for arrived and were unloaded by defendant, the train reached Century No. 2 Mine some time between three o'clock and four o'clock in the morning. The conductor says that the range of the time of arrival for the period of six months preceding January 6, 1915, was from midnight to five o'clock in the morning. The witnesses vary in their recollection as to the time of the arrival of the train at Mine No. 2 on the morning in question, but it is clear that it was between three and four o'clock. And the witnesses agree that it had been raining practically all night; the conductor of the train admits it had rained hard just before he reached Century No. 2 Mine, and that it rained hard twenty minutes after the goods were unloaded. At least one witness, Tony Quinto, who worked about 150 feet away, says it was pouring down rain while the goods were being unloaded, and he says the time was a little after three o'clock. He got up at three o'clock, and he then heard the train coming. The place where the goods were unloaded was where a private road comes down across defendant's railroad. All the witnesses agree that the road and grounds surrounding were very wet and muddy, and a number of witnesses say the flour in paper bags, sugar, salt, and feed were put off in the mud and water, and a large portion of them were totally destroyed by coming in contact with the mud and water and the rain falling upon them. The plaintiff was absent from home the night the goods arrived, but his brother Angelo Annese, who was called, says that about four o'clock he dressed, went out about five o'clock, found it raining hard. He went down to the place where the goods had been unloaded, and swears he found them unloaded in six inches of mud. He covered them with oil cloth, called his brother on the telephone, and following his instructions carried most of them into the store, and tried to save as many as possible, but all were wet and a large portion of them could not be saved.
The sole question presented for decision is, was it actionable negligence under the facts and circumstances described notwithstanding the provision in the bills of lading pleaded and relied on for the defendant company, to unload the goods in the rain and mud, as the jury were warranted in finding and for which plaintiff may recover damages for the loss sustained? That it was the custom to deliver shipments for the plaintiff at the place where the goods in question were delivered, is conceded; but plaintiff and some of his witnesses say the train usually arrived about five o'clock in the morning, but that it had never before occurred that goods perishable like these were put off in the rain and mud at such unreasonable hour, when they would...
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Annese v. Baltimore
... ... or landing at which there is no regularly appointed agent shall be entirely at the risk of the owner after unloading from cars or vessels, the carrier will not he relieved thereby from his gross negligence in unloading in the mud and rain at an unreasonable hour of the night goods consigned to such ... ...