Baltimore & O.R. Co. v. Schumacher

• Decision Date: 19 June 1868
• Citation: 29 Md. 168
• Parties: THE BALTIMORE AND OHIO RAIL ROAD COMPANY v. FREDERICK SCHUMACHER, use of WILLIAM H. MYERS.
• Court: Maryland Court of Appeals

29 Md. 168

THE BALTIMORE AND OHIO RAIL ROAD COMPANY v. FREDERICK SCHUMACHER, use of WILLIAM H. MYERS.

Court of Appeals of Maryland

June 19, 1868

APPEAL from the Superior Court of Baltimore City.

In the month of May, 1862, K. Hager & Co., of Newark, Ohio delivered two hundred and fifty barrels of coal oil, to the Central Ohio Rail Road Company, to be by them transported to Bell Air, Ohio, thence by way of the Baltimore and Ohio Rail Road to Baltimore, and thence by steamer to New York, there to be delivered to the appellee or his assigns. The oil was delivered to the Central Ohio Rail Road Company in three lots, namely, one hundred and fifty barrels on the 1st of May, fifty barrels on the 9th of May, and fifty barrels on the 15th of May, in the said year. On the receipt of each lot, a bill of lading was given by the company to the shipper. The oil was delivered to the appellants at Bell Air and reached Baltimore in the same month. It was there unloaded from their cars, and placed in an open lot near their warehouse on Locust Point. On the 3d of June, 1862, it was forwarded by the Steamboat Transportation Line, between Baltimore and New York, to the latter place, and there delivered to Wales, Wetmore & Co., the assignees of the appellee, where upon its arrival it was ascertained there was a deficiency in quantity of sixty-seven barrels.

This action was brought by the appellee to recover from the appellants for this deficiency; the result of leakage as it was alleged, occasioned by the negligence and remissness of the appellants or their agents in leaving the oil exposed to the sun in the open lot, and by their failure to perform their undertaking as agreed upon in their bills of lading.

The plaintiff at the trial below presented eight prayers of which the Court rejected the first, second, third, fourth, sixth and eighth, and granted the fifth as follows:

5th. If the Court shall be of opinion that the defendants had ceased to be liable as common carriers, on the deposit of the oil at Locust Point, and still retained possession thereof; then the defendants became liable as warehousemen and forwarders; and as such they were bound to use ordinary care and diligence such as a prudent man would exercise in the care and control of his own property of like nature, and such care should be in proportion to the injury or loss likely to be sustained by any act on their part, at variance with such care; and if the jury shall believe, that as warehousemen and forwarders, the defendants did not protect the oil in question from the action of the sun, and use other means in the mode usually adopted by prudent business men in reference to that commodity, and shall further find that by reason of such neglect and want of care and diligence, the loss in question arose, then the plaintiff is entitled to recover to such an extent as the jury shall believe from the evidence he sustained loss.

The seventh prayer of the plaintiff was conceded.

The defendants excepted to the granting of the plaintiff's fifth prayer.

The defendants then offered seven prayers, of which the Court granted the first, second and fifth, and rejected the third fourth, sixth and seventh. To the refusal of the Court to grant these prayers, the defendants excepted.

The rejected prayers were as follows:

3d. If the jury shall find from the evidence, that coal oil, whether crude or refined, is of a character to prevent its being stored in the warehouse with other goods, by reason of the odor with which it infests the latter, and that in consequence it is customary to leave it exposed in the open air, and that the oil described in the bills of lading was exposed between the time of its arrival at Locust Point, and the time of its shipment, then there is evidence from which the jury may find, that there was no want of proper care of said oil by the defendants after it was unladen from the car even should the jury believe, that it was customary to leave crude oil and not refined oil so exposed, and that the oil in question was in fact refined oil; inasmuch as there was nothing in the bills of lading to shew whether the oil was crude or refined, and no testimony has been offered to prove, that the defendants were aware of its character while it was in their custody.

4th. That by the bills of lading which have been offered in evidence, the defendants were bound as carriers only, while the oil in question was in transitu over their road, and as warehousemen, after it was unladen from their cars, and they are not responsible for any leakage, either before the said oil came into their possession or after it left their custody, nor in the absence of all proof of gross negligence, while the said oil was in transit in the cars, nor are the defendants responsible for any loss by leakage, while the said oil was in their custody, after it was unladen from the cars, if the jury shall believe that during that time, the defendants took ordinary care of it as crude oil, and that ordinary care is such care as it is customary to take of crude oil while in transit or waiting transportation.

6th. If the jury shall believe from the evidence, that the plaintiff knew of the presence of the oil in question at Locust Point, and saw it before it was shipped from thence to New York, and that it was in his power to have had the quantity of oil in the barrels guaged before shipment, so as by comparing it with the oil delivered to the defendants at Benwood, the loss of the oil while it was in their hands would be ascertained, it was his duty to have done so, and that failing in this, he cannot be permitted to guess at the damage chargeable to the defendants, and that should the jury find that, in other respects, he is entitled to recover, it must be for nominal damages only.

7th. If the jury believe from the evidence, that the damage complained of by the plaintiff in this suit, was caused by leakage, then the plaintiff is not entitled to recover in the absence of all proof of gross negligence, amounting to bad faith on the part of the defendants.

The verdict and judgment being against the defendants, they appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ROBINSON, J.

Ferdinand C. Latrobe and Thomas Donaldson for the appellants.

The fifth prayer of the plaintiff, as granted by the Court, is defective. It leaves to the jury to find the opinion of the Court, without in fact indicating any means by which that opinion could be known to the jury. The Court should have stated what facts to be found by the jury, would show the liability of the defendants as common carriers, and what facts, as found by the jury, would terminate that liability, and what facts would show their liability as warehousemen. By this prayer, questions of law were submitted to the jury, and questions of fact were decided by the Court.

This prayer is further defective in saying, that the ordinary care and diligence required of the defendants should be in proportion to the amount of loss likely to be sustained by any act at variance with such care. The amount of the injury or loss likely to be sustained, has nothing whatever to do with the question of the degree of care to be exercised; the degree of care to be exercised over fifty barrels of oil is the same as would have to be exercised over one thousand barrels of oil, though the loss in the latter case would be twenty times as great as in the former; the question of ordinary care is one proportioned to the quality of the subject in regard to which it is to be exercised, and not to its quantity or aggregate value. So that the expressions used in this prayer are not only vague and uncertain, and so calculated to mislead the jury, but according to the very meaning of the words themselves, state a false principle. Angell on Carriers, 45, 46, 47.

The prayer is still further defective because the Court decides, that the action of the sun was injurious to the oil; this was a question of fact which was clearly one to be submitted to the jury. Merchants' Bank of Baltimore vs. Bank of Commerce, &c., 24 Md. Rep., 53.

Both in accordance with the law, and in accordance with the special contract made in the bills of lading executed by the Central Ohio Railroad Company, and received by the plaintiff, the liability of the defendants ceased on the unloading of the cars at Locust Point, the terminus of the...