C.C. Taft Co. v. American Express Co.

• Decision Date: 06 March 1907
• Citation: 110 N.W. 897,133 Iowa 522
• Parties: C. C. TAFT COMPANY, Appellee, v. AMERICAN EXPRESS COMPANY, Appellant
• Court: Iowa Supreme Court

110 N.W. 897

133 Iowa 522

C. C. TAFT COMPANY, Appellee, v. AMERICAN EXPRESS COMPANY, Appellant

Supreme Court of Iowa, Des Moines

March 6, 1907

Appeal from Polk District Court.--HON.W. H. MCHENRY, Judge.

ACTION at law by plaintiff against defendant as a common carrier to recover damages for negligence. The opinion states the case. There was a jury trial, and verdict and judgment for plaintiff. The defendant appeals.-- Affirmed.

Affirmed.

Berryhill & Henry, for appellant.

Miller & Wallingford, for appellee.

OPINION

BISHOP, J.

On the evening of May 25, 1903, plaintiff delivered to defendant at Anna, Ill., four hundred and eighty crates of strawberries for shipment to Des Moines, this State. Defendant furnished for the purpose a refrigerator car, and the crates of berries were placed therein by its direction. That it was intended and expected that the car should be properly supplied with ice by defendant before being started on its journey, and that it should in like manner be re-iced en route as might be required, is not the subject of dispute. It is the claim of plaintiff that, although the berries were fresh, sound, and in good shippable condition at the time of the loading at Anna, when the car arrived in Des Moines on the morning of May 27th, and on being opened, it was found that the berries were wholly spoiled and valueless. The negligence alleged is in failing to properly ice the car before being started and while en route. Defendant, in answer, admits the receipt by it as a common carrier of the berries; denies that such berries were in good shippable condition; and denies negligence in respect of the icing of the car. On coming in of the verdict the defendant filed a motion for judgment non obstante, on the ground that the evidence was insufficient to make out a case of negligence; also and subject thereto, a motion for new trial on the same ground. Both motions were overruled, and this appeal followed the entry of judgment on the verdict.

It thus becomes apparent that we have for determination but the question of the sufficiency of the evidence to warrant a finding for negligence. The plaintiff assumed the burden of proof, as under the allegations of its petition it was bound to do. Denton v. Railway, 52 Iowa 161, 2 N.W. 1093. And, as the charge of the court is not set out in the record, we shall assume that the jury was so instructed. Accordingly, it was incumbent on plaintiff to establish by a preponderance of the evidence these several fact conditions: (1) That the berries were shippable when delivered to the defendant; (2) that there was a failure on the part of defendant to properly ice the car; (3) that the condition of the berries when the car reached Des Moines was due to such failure to ice. There is some dispute in the evidence as to the condition of the berries when shipped. But the evidence for plaintiff tended to show that the shipment was in the evening, and that the fruit had been picked during the day; that it was in good condition, and not overripe, and was properly packed. So far, therefore, a finding in favor of plaintiff was warranted.

The car was arranged for refrigeration purposes by four ice bunkers two at each end. The bunkers were loaded from the top of the car through trapdoors, and each would hold from one thousand two hundred to one thousand five hundred pounds of ice. The trapdoors were intended to be air-tight when closed. There was evidence for plaintiff tending to show that, when the car left Anna, the ice bunkers were not over half full, that the attention of defendant's agent was directed to the...