Continental Can Company v. Eazor Express, Inc.
| Citation | 354 F.2d 222 |
| Decision Date | 27 December 1965 |
| Docket Number | No. 197,Docket 29536.,197 |
| Parties | CONTINENTAL CAN COMPANY, Inc., Appellee, v. EAZOR EXPRESS, INC., Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Herbert Burstein, New York City, (Zelby & Burstein, New York City), for appellant.
Saul Goldstein, New York City (Max J. Gwertzman, New York City, of counsel), for appellee.
Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.
Eazor Express, Inc. ("Eazor") appeals from a judgment finding it negligent, after a non-jury trial, and awarding $10,539.81 to Continental Can Company, Inc. ("Continental") for damage to a shipment. We affirm.
Continental engaged Eazor, a common carrier, to transport by truck a bottle manufacturing machine weighing in excess of 25,000 pounds from Chicago, Ill. to Washington, Pa. During the journey, while the truck was ascending a steep hill, the large and complex machine fell off the vehicle. As a result, extensive work was required to repair the damage.
Pursuant to 49 U.S.C. § 20(11), a carrier is liable to the lawful holder of the bill of lading for loss or damage to shipped goods while in transit. If the shipper makes out a prima facie case by establishing delivery to the carrier in good condition and arrival at the destination in damaged condition, the burden of disproving negligence passes to the carrier. See Missouri P. R. Co. v. Elmore & Stahl, 377 U.S. 134, 84 S.Ct. 1142, 12 L. Ed.2d 194 (1964).
It is not necessary for us to detail the evidence presented by both sides on the issue of negligence and fully set forth in Judge McLean's opinion. It is sufficient that we state that Judge McLean had ample evidence before him upon which to base his inferences and conclusions.
We hold that Continental delivered the machine to Eazor in good condition and that it was damaged in transit. While it is true that Continental's agents did not bolt the machine to the skids on which it rested in the truck, there is evidence to support the court's finding that because of the unusual construction of the article being transported it was not feasible to fasten it as suggested by Eazor. Moreover, the bill of lading which called only for a "skidded machine" did not explicitly require that bolts be employed or that any other specific method of securing the device be utilized.1
We also believe that Eazor failed to prove its freedom from negligence in transporting the machine. Eazor urges that it carried its burden because the driver of the truck testified that he ascended the hill at ten miles per hour. But the judge was not bound to believe him even without contradiction, and here there was. Continental's expert witness, Martin J. Dolan, a master rigger familiar with trucking heavy machinery, testified that if the truck had been turning right at slow speeds while mounting the hill, the machine would have fallen in the direction of the turn. But, at greater...
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George R. Hall, Inc. v. Superior Trucking Co., Civ. A. No. C79-797A.
...did not consider Continental Can Co., Inc. v. Eazor Express, Inc., 1964 Fed.Carr.Rep. (CCH) ¶ 81,701 (S.D.N. Y.1964), aff'd 354 F.2d 222 (2nd Cir. 1965), a case directly on point with the instant case. In Continental the plaintiff shipped a large, heavy and complex machine which slipped off......
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...Secretary of Agriculture v. United States, 350 U.S. 162, 165 n. 9, 76 S.Ct. 244, 100 L.Ed. 173 (1956); Continental Can Co. v. Eazor Express, Inc., 354 F.2d 222 (2d Cir. 1965); cf. The Nitro-glycerine Case, 82 U.S. (15 Wall.) 524, 21 L.Ed. 206 (1872); Bruskas v. Railway Express Agency, 172 F......
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Southwestern Motor Transport Co. v. Valley Weathermakers, Inc.
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