Atlantic Fruit Co. v. Pennsylvania R. Co.

• Citation: 130 A. 63,149 Md. 1
• Decision Date: 30 June 1925
• Docket Number: 58.
• Parties: ATLANTIC FRUIT CO. ET AL. v. PENNSYLVANIA R. CO.
• Court: Maryland Court of Appeals

130 A. 63

149 Md. 1

ATLANTIC FRUIT CO. ET AL. v. PENNSYLVANIA R. CO.

No. 58.

Court of Appeals of Maryland

June 30, 1925

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Action by the Atlantic Fruit Company and another against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, PARKE, and WALSH, JJ.

Addison E. Mullikin, of Baltimore (Mullikin & Porter, of Baltimore, on the brief), for appellants.

Charles H. Carter, of Baltimore (Bernard Carter & Sons, of Baltimore on the brief), for appellee.

WALSH J.

On the morning of January 24, 1923, the Atlantic Fruit Company hereinafter called the plaintiff, asked the Pennsylvania Railroad Company, hereinafter called the defendant, to send a float at 1 p. m. that day to a steamer in New York harbor for the purpose of getting five carloads of bananas from the steamer and transporting them to the plaintiff's Pratt street pier in Baltimore city. The float, with the cars on it, reached the ship's side at 3:10 p. m. that same day; the bananas were loaded into the cars by 5 p. m.; and at 5:10 p. m. the plaintiff notified the defendant that the float would be ready to tow at 7 p. m. At 5:50 p. m. the plaintiff delivered the bills of lading for the shipment to the defendant, and at 7 p. m. the defendant returned them stamped as follows:

"Abnormal conditions prevail on the lines of carrier which will handle this shipment, and it is subject to delay. This advice is given to the owner of the property covered by this contract, in order that he may have due notice of the fact."

They were also marked, "Messenger in charge."

The plaintiff accepted the bills of lading thus stamped, and at 7:55 p. m. the float was taken from the ship's side, and towed to the freight terminal of the defendant at Harsimus Cove, where it arrived about 9 p. m., and at 10:10 p. m. it was signalled into the float bridge to be unloaded, and by 10:50 p. m. all the cars on the float had been taken off and placed in the freight yard of the defendant. The five cars were placed in a train known as M. D. 11, which train was scheduled to leave Harsimus Cove at 1 a. m., and seems to have been made up largely of perishable freight consigned to points south of New York. Under normal conditions the plaintiff's five cars leaving in this train on scheduled time would have reached Baltimore from 14 to 16 hours later, that is, between 3 and 5 p. m. on January 25th, but on this occasion the train did not leave the freight yard until 1 p. m. on the 25th, and the five cars in question did not reach the Pratt street pier in Baltimore until 5:55 p. m. on January 26th, which was 25 to 27 hours late.

The explanation of this delay given by the defendant was that about 5 p. m. on January 24, 1923, it began to experience difficulty in handling its float operations in Harsimus Cove because of the presence of ice in the Cove, and the consequent packing of this ice beneath the float bridges; that this difficulty increased during the evening; and that as a result of it the entire movement of freight in the yard that night was disarranged, and all freight trains were delayed. It also offered evidence tending to show that after this initial delay on the night of January 24th it was impossible for the freight trains to move with dispatch on the 25th, because such movement would have interfered with the regular passenger movement maintained during the day, and there was further evidence that the defendant under the circumstances used reasonable care and diligence in forwarding the cars of the plaintiff to their destination. The evidence of the plaintiff showed that the bananas were in "good green condition" when loaded in the cars; that the cars were properly heated; that the bananas would have been in good condition had they reached Baltimore on the afternoon of January 25th, the scheduled time of arrival, and could have been sold at the prevailing market price on the morning of the 26th had they arrived on time. Its testimony further showed that when the bananas arrived on the evening of the 26th more than 50 per cent. of them were ripe, and the balance were turning; that they were sold the following morning at auction in accordance with the custom of the trade; that they brought approximately $2,000 less than they would have brought had they been in good condition; and that the market price on the 25th and 26th was the same. It further appeared that the plaintiff sent a messenger with the cars, one Louis Brodie, whose duty it was to see that the cars were properly heated when the fruit was loaded and the shipment started, and whose further duty was to accompany the cars to their destination and to regulate their temperature while in transit by adjusting certain vents and plugs in the cars. The testimony as to whether or not Brodie properly performed his duty on this particular trip was conflicting, but in our opinion it was sufficient to justify the submission of the question to the jury.

The plaintiff sued the defendant for the loss sustained, alleging it was caused by the failure of the defendant to transport the goods "with safety and due diligence"; the case was tried before the court and jury; and, the verdict and judgment being for the defendant, the plaintiff appealed.

There is only one exception in the case, and that was taken to the action of the learned court below in refusing to grant the first and second prayers of the plaintiff, and in granting the first and second prayers of the defendant.

The plaintiff's first prayer authorizes a finding that the plaintiff suffered a loss because the cars did not arrive in time for the market on the 26th, and the second prayer likewise includes this item as the sole cause of loss, and also in conjunction with damage to the goods. There was no evidence in the case that the market price on the 27th, the day the goods were sold, was any lower than it was on the 26th; in fact, the evidence showed that the price was the same on both these days, and there was accordingly no error in rejecting these two prayers.

Before considering the plaintiff's objections to the granted prayers of the defendant, it will be well to state some of the legal principles which govern cases of this character.

In P. B. & W. R. Co. v. Diffendal, 109 Md. 494, 504, 505, 72 A. 193, 196, this court said:

"The ordinary common law liability of a common carrier as to most commodities committed to its custody for transportation, is that of an insurer against all risks incident to the transportation, save such as result from the act of God or the public enemy, or the fault of the shipper, but with respect to perishable goods, which themselves contain the elements of destruction occasioning their own loss or deterioration, the carrier is not an insurer, but is required to exercise reasonable care and diligence to protect the goods from injury while in its custody as well as to deliver them with dispatch to the consignee or connecting carrier."

And see, also, P. R. Co. v. Clark, 118 Md. 514, 518, 85 A. 613.

"Where, without fault on its part, a carrier is unable to perform a service due and

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