Dolan Fruit Company v. Davis
| Citation | 196 N.W. 168,111 Neb. 322 |
| Decision Date | 07 December 1923 |
| Docket Number | 22604 |
| Parties | DOLAN FRUIT COMPANY, APPELLEE, v. JAMES C. DAVIS, DIRECTOR GENERAL, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Hall county: BAYARD H. PAINE JUDGE. Reversed.
REVERSED AND REMANDED.
Byron Clark, Jesse L. Root and J. W. Weingarten, for appellant.
James H. Woolley, W. J. Wilkinson and Stough & Dunn, contra.
Heard before MORRISSEY, C. J., ROSE and GOOD, JJ., REDICK, District Judge.
The action is to recover $ 337.74 damages to a carload of bananas, alleged to have been caused by negligence of the defendant. The shipment was from Kansas City, Missouri, to Grand Island, Nebraska, and the car in question left Kansas City at 11 a. m. December 6, 1919, arrived at Lincoln 4 p. m. December 7, left Lincoln at about midnight, and arrived at Aurora 10 a. m. December 8. The bananas were in good condition at Kansas City and upon their arrival at Aurora. During transportation between Lincoln and Aurora a severe snow storm commenced and it was very cold from 3 to 7 degrees below zero, and conditions were such that the greater part of the train was abandoned at Bradshaw, about 18 miles east of Aurora, but a few cars, including the car of bananas, went forward, arriving at Aurora, as above stated. In the meantime the storm increased, and in the judgment of defendant's agents it was unsafe to continue shipment of freight from Aurora to Grand Island, about 22 miles, and the car of bananas was side-tracked at Aurora and remained there until early the morning of December 10, when it was placed on the first freight train going west after the storm. It arrived at Grand Island about noon of the 10th, and the bananas were found to be damaged so that their market value was depreciated in the sum sued for. Plaintiff claims that bananas must have air, and that it was necessary to ventilate the car; that this could not be done while the car was out in the yards, because to allow the cold air to strike the bananas would turn them black and destroy their market value, and that, therefore, it was necessary to put the car in some sheltered place where the doors might be opened and the car ventilated gradually without injury to the fruit. It was a refrigerator car provided with a heater in one end, and accompanied by a caretaker for plaintiff during the entire shipment. It is claimed that the caretaker requested the defendant to house the car in the roundhouse so that it might be properly ventilated, but that defendant refused. It is further claimed that the caretaker requested defendant to put the car of bananas on a passenger train which left Aurora at 4.18 p. m. December 8, two hours late, which defendant refused. It stopped snowing, but the wind blew very hard about midnight of the 8th, the snow drifted badly, and a snow plow was started from Aurora at 7:45 a. m. of the 9th, arriving at Ravenna, beyond Grand Island, at 9.45 a. m. The tracks in the yards at Aurora were clogged with snow so that the cars had to be dug out with shovel.
The answer denied all negligence, alleged that the delay at Aurora was caused by the act of God, that the injury to the bananas was due to their inherent qualities and to negligence of the caretaker of plaintiff in properly protecting them. Defendant further claims that roundhousing the car or sending it forward on a passenger train was not permitted under its published tariffs, and would constitute a discrimination in favor of the plaintiff, inasmuch as such special protection was not offered to shippers generally by its published tariffs. The allegations of the answer were put in issue by the reply. Trial to a jury resulted in a verdict and judgment for the plaintiff for the amount claimed, and, motion for new trial having been overruled, defendant appeals.
Plaintiff claims defendant was negligent (1) in not putting the car in the roundhouse as requested; (2) in not continuing the freight train from Aurora to Grand Island on its regular schedule; (3) in not attaching the car of bananas to the passenger train; and (4) in delaying the shipment eight hours at Lincoln, but for which delay the car would have arrived in Grand Island before the storm.
With reference to the charge of negligent delay at Lincoln, it is sufficient to say that the established rule of the federal court is to the effect that, where there has been a negligent delay in transportation but for which the subsequent act of God would not have operated to the injury of the shipment, nevertheless the act of God, and not the negligent delay, must be considered the proximate cause of the loss. Northwestern Consolidated Milling Co. v. Chicago, B. & Q. R. Co., 135 Minn. 363, 160 N.W. 1028, and cases cited. Furthermore, it appears that the delay in Lincoln itself caused no injury, as the bananas were found in good condition upon arrival at Aurora. The lower court properly withdrew this charge of negligence from the consideration of the jury.
The charges of negligence for failure to roundhouse and refusal to forward on a passenger train may be considered together. In this connection defendant claims, and the evidence shows that its published tariffs did not offer to the shipper any such special protection as was here demanded, and that defendant furnished a heater to be operated and controlled by the plaintiff's caretaker who had complete control of the shipment and whose duty it was to properly protect it from the cold. This being an interstate shipment, it is governed by...
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