Farmers' Mercantile Co. v. N. Pac. Ry. Co.

• Decision Date: 12 March 1914
• Citation: 146 N.W. 550,27 N.D. 302
• Parties: FARMERS' MERCANTILE CO. v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

27 N.D. 302

146 N.W. 550

FARMERS' MERCANTILE CO.

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

March 12, 1914.

Syllabus by the Court.

“Gross negligence” is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically willful in its nature. It is an omission of duty which is akin to fraud. It is the absence of even slight care.

Evidence examined, and held not to show gross negligence.

Where goods have been received and unloaded and the freight thereon paid by the consignee, but part only is actually and physically delivered on account of the fact that the consignee does not have drayage facilities sufficient to remove all, the liability of the railroad company as a warehouseman extends to such portion so left with it, unless at the time of such partial delivery it gives notice to the consignee that it will not insist upon storage charges and will no longer hold possession of the property as a warehouseman.

Where goods are placed in a depot or warehouse in a room in proximity to which is a stove which can only be regulated by opening the door, and within three and six feet of such stove is inflammable matter, it is a question of fact for the jury whether the leaving such door open in order to check the draft and prevent the fire from burning out constitutes lack of ordinary care.

It is also a question for the jury whether the leaving such door open in the proximity of the inflammable matter was the cause of the conflagration, which, it is proved, destroyed the goods; there being no other probable cause disclosed by the evidence.

A plaintiff is not bound to exclude the possibility that an accident might have happened in some other way than that contended for by him. He is only required to satisfy the jury by a fair preponderance of his evidence that his injury occurred in the manner he contends for.

If there be shown any facts bearing upon the question of a loss or injury and they afford room for fair-minded men to conclude therefrom that one theory of the case is better supported than the other, the question cannot properly be withdrawn from the jury.

A cause being shown which might produce an accident, and it further appearing that an accident of that particular character did occur, it is a warrantable inference, in the absence of showing of other cause, that the one known was the operative agency in bringing about the result.

Where in such a case the evidence is so uncertain as to leave it equally clear and probable that the injury resulted from any one of a number of causes that might be suggested, then and in that case a verdict for plaintiff would be pure speculation and could not be sustained; but where the evidence, although circumstantial, is such that it would appear possible that the injury resulted from any one of several causes, and yet it points to the greater probability that it resulted from the specific cause charged by the plaintiff, a nonsuit should not be granted.

If upon a fair construction that a reasonable man might put upon the evidence or any inference that might reasonably be drawn therefrom, the conclusion of negligence can be arrived at or justified, then the defendant is not entitled to a nonsuit, but the question of negligence should go to the jury.

Appeal from District Court, Morton County; Nuchols, Judge.

Action by the Farmers' Mercantile Company against the Northern Pacific Railway Company for damages for loss of freight by fire. From judgment for defendant, plaintiff appeals. Reversed.

This is an action to recover the value of certain merchandise which was destroyed by fire in defendant's warehouse at Mandan on March 8, 1910. Various shipments of merchandise were consigned to defendant by various wholesale houses for delivery to the plaintiff at Mandan, N. D. Plaintiff's place of business, however, was situated about 18 or 20 miles from Mandan. The goods arrived at Mandan on the 24th day of February, 1910, and on the 1st and 2d days of March, 1910. On arriving at their destination, they were placed in the defendant's warehouse. On the 24th day of February, 1910, plaintiff paid the freight for the goods received upon that day, and on the 3d day of March paid the freight upon the balance of the goods which reached Mandan on the 1st day of March, 1910, and on the 2d day of March, 1910, respectively. At such time plaintiff was given a receipt for the freight so paid, but whether it itself gave a receipt for the goods is not in evidence. On the 3d day of March, 1910, plaintiff called for the goods with a drayman; but, the drayman not having room for all of the freight, a portion thereof was left in defendant's warehouse at Mandan, and said goods were destroyed by fire on March 8, 1910. It was shown in the evidence that the plaintiff was in the habit of hiring its teaming done; that it sent up teams from its place of business at St. Anthony; and that it often happened “that the team could not haul all of the goods, and the balance was left in the freight depot until the team would come up again. This would be three or four days according to the roads. Only once or twice did we have to pay storage, but as a general rule we did not have to pay storage, and we were not asked to pay storage on the goods in suit. At this time the roads were bad, and the teams were slow in coming up.” This evidence, as we construe it, shows that no storage was asked for the care of the goods from the time of their arrival, which was on the 24th day of February, 1910, and the 1st and 2d days of March, 1910, and at the time of a removal of a portion on the 3d day of March, 1910, and we may assume that no storage fee was demanded after the fire. The evidence, however, is a little inconclusive as to the terms on which the goods destroyed were left with the defendant after removal of part of the consignment. All of the evidence upon the subject in addition to that already given is to be found in the testimony of the secretary and treasurer of the plaintiff corporation, and is as follows: “When I paid the freight, I took a receipt for it. Exhibit A is one of them. Where there was only one package and it was delivered, there was a ring placed around the figure in the column marked ‘number of packages,’ indicating that the package was delivered. Where there was no ring around it, it was not delivered. The barrel of linseed oil not checked off is the only item on that bill not received. The drayman put on his wagon the other items and undoubtedly did not have room to take it. He came up and got other goods right along, but did not get around to take this barrel. There might have been other goods that we needed more. Occasionally we specified what he was to bring, but he usually had his own way. In general he had orders to take what came first.” Exhibit A does not appear to have been offered in evidence. At any rate, it is not in the record. It was stipulated that each of the bills of lading issued for the carriage of the goods contained the following provisions: “Property not moved by the party entitled to receive it, within forty-eight hours, exclusive of legal holidays, after notice of its arrival has been duly sent or given, may be kept in a car, depot or place of delivery of the carrier or warehouse subject to reasonable charge for storage and to the carrier's responsibility as a warehouseman only, or may be at the option of the carrier removed to and stored in a public or licensed warehouse at the cost of the owner, and there held at the owner's risk and without liability on the part of the carrier and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage. For loss, damage or delay caused by fire occurring forty-eight hours, exclusive of legal holidays, after notice of the arrival of the property at destination or at port of export, if intended for export, has been duly sent or given, the carrier's liability shall be that of warehouseman only.” There is no evidence as to whether the goods were checked over by the plaintiff or by his drayman. All that the witness testified to is that the freight was paid and a receipt for the money given. There is evidence, however, that certain goods were delivered to the drayman by the defendant, and that a ring was placed around the goods in the column marked, “Number of packages,” in the bill of lading. The case therefore as to the goods which were destroyed is not a case where goods have been physically delivered and afterwards returned for safe-keeping, but where a consignment of goods has been received, a part delivered, and the remainder left without anything being said as to the terms and conditions of leaving.

The facts are practically undisputed which bear upon the commencement and cause of the fire. In the southwest corner of the defendant's depot was a “warming room,” where goods which might be injured by freezing were stored. There was a door from the outside into this room. This, however, was kept locked, and there was only one window, which was shut. The only door, therefore, by which you could readily get into the “warming room,” was in the northeast corner and opened from the inside of the freight depot proper. There were two stoves in the room only one of which was used, and this one at this time of the year (March 8th) was kept going only at night, at it was not very cold. The stove was of cast iron belonging to the class known as the “Earle Round Stoves,” bulged in the middle, and such as are usually used in small stations and cabooses. The feed door was in the upper part and the fire box in the lower half. It appears to have had no damper nor drafts and was regulated by leaving the door open or shut as you wanted to check or stimulate the fire. There was a piece of zinc beneath this stove. The...