Daniels v. Northern P. Ry. Co.

• Citation: 171 P. 1178,88 Or. 421
• Parties: DANIELS v. NORTHERN PAC. RY. CO.
• Decision Date: 16 April 1918
• Court: Supreme Court of Oregon

171 P. 1178

88 Or. 421

DANIELS v. NORTHERN PAC. RY. CO.

Supreme Court of Oregon

April 16, 1918

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by W. N. Daniels, doing business as the La Grande Creamery Company, against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The defendant is a railway common carrier of goods. The plaintiff alleges in substance that he purchased in Concordia, Kan 330 boxes of butter and 37 boxes of poultry, and caused them to be shipped in good order by another railroad company connecting with the line of the defendant consigned to himself at Portland, Or. He says:

"That when the said poultry was delivered to the said railroad company by the said John Stewart, consignor, for shipment as aforesaid, the same was in first-class condition, the poultry having been solidly frozen in the boxes and thoroughly iced by the consignor after being packed in said car, but by reason of the negligence and carelessness of the defendant, its agents and servants in charge and control of said car containing said goods in failing to thoroughly re-ice the same and otherwise properly care for the said poultry in boxes in transit," the same became putrid, so that it was utterly valueless when it arrived at its destination in Portland.

Substantially the same averment is made concerning the butter which is said to have become tainted by the odor of the decaying fowls. The defendant denies all the allegations in the complaint. The answer says in effect that the defendant received the car at Billings, Mont., but that at the time the poultry was in a putrid condition because it had not been properly frozen and prepared before loading, and goes on to say that the company transported the shipment to Portland with all possible speed and all the ordinary care and caution required, delivering the articles at their destination in the same condition in which they were when received by the defendant at Billings that at once it notified the plaintiff of the arrival of the car, but that he did not begin to unload it until two days afterward. The answer further charges negligence upon the plaintiff in failing to remove the goods from the car immediately on its arrival. The new matter of the defendant's pleading was traversed by the reply. The judgment went for the plaintiff, and the defendant appeals.

Omar C Spencer, of Portland (Carey & Kerr, of Portland, on the brief), for appellant. Ralph A. Coan, of Portland (Pearce &amp Meloney, of Portland, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

One error complained of by the defendant is that a witness who testified that he had been in the business of dealing in butter, eggs, and poultry since 1902, and that butter was very susceptible to foul odors, which would damage it, was allowed to answer this question, "What would be the amount of such damage?" by saying, "Well, the amount of such damage would run as high as seven to eight cents a pound." That this was error was decided in Burton v. Severance, 22 Or. 91, 29 P. 200; P. Live Stock Co. v. Murray, 45 Or. 103, 76 P. 1079; Montgomery v. Somers, 50 Or. 259, 90 P. 674; P. Ry. & Nav. Co. v. Elmore Packing Co., 60 Or. 534, 120 P. 389, Ann. Cas. 1914A, 371, and other cases. The reason of this rule is that a witness is not allowed to invade the ultimate province or function of the jury to declare the amount which will compensate the plaintiff for the injury suffered. If good butter had a market price known to dealers generally and to the witness in particular he might have stated that price, and if he knew the butter after it became tainted and that it had a market price in that condition he might have told what it was. He might, also, have given his opinion that the quality of the butter would be depreciated a certain percentage, but he would have no right to assess the amount of damage per pound. That must be left to the jury.

The bill of exceptions discloses that there was some testimony to the effect that the shipment was delivered to the initial carrier in good condition, and that on arrival at Portland, Or., it was delivered by the defendant in bad order. From the same source we learn that the defendant offered the depositions of sundry witnesses who handled the refrigerator car in question from its arrival in Billings, Mont., to Portland; that the car was sealed with the seals of another road; that ice and salt were supplied in the ice boxes of the car whenever needed while it was in the custody of the defendant, and that it was properly handled and transported over the line of the defendant in the usual time and without unnecessary delay. It is said in the record that the plaintiff offered no evidence to rebut the testimony of the defendant, and tendered nothing to prove how the car was handled from the time it left Concordia until it reached Portland. The defendant seasonably requested the three following instructions:

"If you find in this case that the defendant received the carload of poultry and butter and used reasonable diligence in re-icing the car and handling it through to its destination in Portland, and offered delivery of it in the same condition as when it was received at Billings, Mont then the defendant has performed its full duty to the plaintiff, and there can be no recovery against it in this case."

"It is alleged in the second amended complaint that the negligence of the defendant consisted in its failure to thoroughly ice the butter and poultry and otherwise properly care for the same while in transit. I charge you that the defendant railway company did not insure against natural decay of the produce shipped except such

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