Commodity Credit Corporation v. Norton
Decision Date | 01 April 1948 |
Docket Number | No. 9463.,9463. |
Citation | 167 F.2d 161 |
Parties | COMMODITY CREDIT CORPORATION v. NORTON. |
Court | U.S. Court of Appeals — Third Circuit |
H. Kermit Green, of Newark, N. J. (Green & Yanoff, of Newark, N. J., on the brief), for appellant.
Charles S. Barrett, Jr., of Newark, N. J. (Lum, Fairlie & Foster, of Newark, N. J., on the brief), for appellee.
Before MARIS, O'CONNELL and KALODNER, Circuit Judges.
This is an action to recover damages for the loss of certain castor seed oil transported by rail from Norfolk, Va., to Edgewater, N. J. The defendant is Trustee of the last in a series of carriers.
The appeal herein is prosecuted directly from the entry of judgment on a jury verdict against the plaintiff in the court below, there having been no motion for a new trial or for judgment in accordance with the plaintiff's motion for directed verdict.1
The questions presented for determination are (1) whether the record required the direction of a verdict for the plaintiff, and (2) whether the trial judge erred in his charge to the jury on the nature and extent of the liability of the defendant.
The oil cargo in controversy arrived by ship at Norfolk in bad condition. To permit further rail transportation, the plaintiff's agents at Norfolk had the barrels in which the oil arrived recoopered and the loose oil put into second hand barrels. The shipment was then delivered to the Norfolk and Western Railway Company which loaded it in four cars2 and issued its through bill of lading therefor acknowledging receipt in apparent good order and condition. The facts as to the recoopering and repackaging were made known to the railroad's representatives. The oil completed its journey in the same cars, but on arriving at Edgewater a goodly portion of it had leaked out of the barrels and some of the barrels were found in a badly broken condition and collapsed.
The plaintiff relies on the defendant's liability as a common carrier, asserting that liability to be an insurer's, and upon the presumption, said to be effective where the delivering carrier is sued, that the damage occurred on its line. On the basis of the record made below, it is contended that the defendant is liable as a matter of law because (1) the barrels were in actual good order and condition when received and were delivered in bad condition; (2) if the barrels were defective, the defect was patent; (3) if the defect was latent, it had become patent, during the course of the transportation and (4) defendant was negligent in the handling and care of the shipment and such negligence was the proximate cause of the loss.
Examination of the record discloses the following:
A member of the firm which accomplished the recoopering of the barrels testified, by deposition, that the recoopered barrels would withstand ordinary rail transportation, although he conceded that under certain conditions the hoops would creep, the staves would loosen, and the oil would leak. In contradiction a veteran cooper testified, also by deposition, that he had worked on most of the barrels involved and that those barrels would not withstand ordinary rail transportation. There was conflicting testimony as to whether the barrels were properly stowed in the cars: a surveyor for the plaintiff said that there was inadequate bracing and dunnage, and an experienced railroad man produced by the defendant said that the method of stowage was usual and proper. Finally, the defendant adduced evidence that the four cars were shopped at Hagerstown, Md., where the barrels were found to have been leaking; that one car, C&O # 8088, was shopped at Allentown, Pa., and the barrels therein were found to have been leaking; that there was no report of leakage in any of the cars between Allentown and Green Pond Junction on the lines of the Central Railroad of New Jersey; that there was no report of any leakage on the defendant's line between Green Pond Junction and Little Ferry Junction; and that a personal inspection was made of the train of which these cars were a part on the defendant's line between Little Ferry Junction and Edgewater, but no leakage was discovered. There was also evidence from which it could be inferred that while in the possession of the carriers the oil cargo did not meet any accident and was not handled roughly.
Although we do not specifically refer to all the evidence in the case, what we have recited reveals the kind of conflict on all material issues which must be resolved by the jury. The learned trial judge, therefore, in our opinion, did not err in denying the plaintiff's motion to direct the verdict.
Preliminarily, it must be noted that we are here dealing with an interstate shipment, and that the service of the defendant "was that of a common carrier furnishing a necessary link in the transportation under the through bill of lading." Galveston...
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