Farmers' Mercantile Company v. Northern Pacific Railway Company

• Decision Date: 12 March 1914
• Court: North Dakota Supreme Court

146 N.W. 550

27 N.D. 302

FARMERS' MERCANTILE COMPANY v. NORTHERN PACIFIC RAILWAY COMPANY

Supreme Court of North Dakota

March 12, 1914

Appeal from the District Court of Morton County, Nuchols, J.

Action for damages for loss of freight by fire. Judgment for defendant. Plaintiff appeals.

Reversed.

Reversed and remanded.

W. H Stutsman, for appellant.

A motion to direct a verdict must specify the ground upon which it is made. Tanderup v. Hansen, 8 S.D. 375, 66 N.W 1073; Howie v. Bratrud, 14 S.D. 648, 86 N.W. 747; Mattoon v. Fremont, E. & M. V. R. Co. 6 S.D. 196, 60 N.W 740.

Plaintiff is not bound to exclude the possibility that the accident might have happened in some way other than the way charged; such a holding would be to require him to make proof beyond a reasonable doubt. He is only required to satisfy the jury by a preponderance of the evidence. Lunde v. Cudahy Packing Co. 139 Iowa 688, 117 N.W. 1063; Hopkinson v. Knapp, & S. Co. 92 Iowa 328, 60 N.W. 653, 14 Am. Neg. Cas. 568; Dalton v. Chicago, R. I. & P. R. Co. 104 Iowa 26, 73 N.W. 349; Huggard v. Glucose Sugar Ref. Co. 132 Iowa 724, 109 N.W. 475.

Where, from the state of the evidence, there is room for honest, fairminded men to differ as to the cause of the accident or injury, it is always a question for the jury. Schoepper v. Hancock Chemical Co. 113 Mich. 582, 71 N.W. 1081; Jucker v. Chicago & N.W. R. Co. 52 Wis. 150, 8 N.W. 862; Brownfield v. Chicago, R. I. & P. R. Co. 107 Iowa 254, 77 N.W. 1038, 5 Am. Neg. Rep. 331; Seattle v. St. Louis & S. F. R. Co. 127 Mo. 336, 30 S.W. 125.

The question is not what the trial court, or this court, might infer from a given state of facts, but whether the jury, as reasonable, fair men might legitimately conclude from the proof offered, that the accident occurred in the manner alleged by plaintiff. Mumma v. Easton & A. R. Co. 73 N.J.L. 653, 65 A. 210; White v. Chicago, M. & St. P. R. Co. 1 S.D. 326, 9 L.R.A. 824, 47 N.W. 146; Kenney v. Hannibal & St. J. R. Co. 80 Mo. 573; Sheldon v. Hudson River R. Co. 14 N.Y. 218, 67 Am. Dec. 155; Rintoul v. New York C. & H. R. R. Co. 17 F. 905; Bevis v. Baltimore & O. R. Co. 26 Mo.App. 19; Deming v. Merchants' Cotton-press & Storage Co. 90 Tenn. 307, 13 L.R.A. 518, 17 S.W. 89; Houston v. Brush, 66 Vt. 331, 29 A. 380.

The accident would not have happened if someone had not been careless. It is one that would not ordinarily happen without the negligence of some one. Kaples v. Orth, 61 Wis. 531, 21 N.W. 633; St. Paul F. & M. Ins. Co. v. Great Northern R. Co. 116 Minn. 397, 133 N.W. 849; Cummings v. National Furnace Co. 60 Wis. 603, 18 N.W. 742, 20 N.W. 665; Carroll v. Chicago, B. & N. R. Co. 99 Wis. 399, 75 N.W. 176; Shafer v. Lacock, 168 Pa. 497, 29 L.R.A. 254, 32 A. 44; Paulsen v. Modern Woodmen, 21 N.D. 235, 130 N.W. 231; Stevens v. Continental Casualty Co. 12 N.D. 463, 97 N.W. 862; Anthony v. Mercantile Mut. Acci. Asso. 162 Mass. 354, 26 L.R.A. 406, 44 Am. St. Rep. 367, 38 N.E. 973.

On a motion by defendant for a directed verdict, at the close of plaintiff's case, the court will assume the evidence of the plaintiff to be undisputed, and give to it the most favorable construction it will bear. Bohl v. Dell Rapids, 15 S.D. 619, 91 N.W. 315; Richardson v. Swift & Co. 37 C. C. A. 557, 96 F. 699; Kansas P. R. Co. v. Richardson, 25 Kan. 391; Lowe v. Salt Lake City, 13 Utah 91, 57 Am. St. Rep. 708, 44 P. 1050.

If negligence can be established from any lawful deduction from the evidence, it is error for the court to grant a nonsuit. Vanderwald v. Olsen, 1 N.Y. S. R. 506; Ham v. Lake Shore & M. S. R. Co. 13-23 Ohio C. C. 496; Stephens v. Brooks, 65 Ky. 137.

Watson & Young and E. T. Conny, for respondent.

Where the ground for motion for a directed verdict makes manifest the question of law upon which the case is taken from the jury, and the defects upon which the motion is based do not admit of correction, or could not have been cured had attention been specifically called to them, a failure to so specify will not reverse the ruling. Daley v. Russ, 86 Cal. 114, 24 P. 867; Fontana v. Pacific Can. Co. 129 Cal. 51, 61 P. 580; Smalley v. Rio Grande Western R. Co. 34 Utah 423, 98 P. 311; Chasse v. Bankers' Reserve Fund L. Ins. Co. 27 S.D. 70, 129 N.W. 571.

It is sufficient if the question is raised in general terms, where the motion is based upon the insufficiency of the evidence to sustain a recovery. 38 Cyc. 1584; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N.D. 410, 61 N.W. 145.

The defendant was only a gratuitous bailee--and needed not to employ a watchman to guard the warehouse. Texas C. R. Co. v. Flanary, Tex. Civ. App. , 50 S.W. 726.

Where a railroad company is acting in good faith, as a mere depositary without pay, it is only required to use slight care, and will be liable for an act of ordinary negligence on the part of its servants. Brown v. Grand Trunk R. Co. 54 N.H. 535; McCombs v. North Carolina R. Co. 67 N.C. 193; Kenney Co. v. Atlanta & W. P. R. Co. 122 Ga. 365, 50 S.E. 132.

The consignee took the risk when it failed to remove the goods and left them to be cared for by the defendant. Whitney Mfg. Co. v. Richmond & D. R. Co. 38 S.C. 365, 37 Am. St. Rep. 767, 17 S.E. 147.

There is no liability on the common carrier if he does not interfere to cause the injury. 6 Cyc. 464; Georgia R. & Bkg. Co. v. Thompson, 86 Ga. 328, 12 S.E. 640; Neal v. Wilmington & W. R. Co. 53 N.C. (8 Jones, L.) 482; Vaughn v. New York, N.H. & H. R. R. Co. 27 R. I. 235, 61 A. 695; Gregg v. Illinois C. R. Co. 147 Ill. 550, 37 Am. St. Rep. 238, 35 N.E. 343; South & North Ala. R. Co. v. Wood, 66 Ala. 167, 41 Am. Rep. 749; Whitney Mfg. Co. v. Richmond & D. R. Co. 38 S.C. 365, 37 Am. St. Rep. 767, 17 S.E. 147.

If a bailee for hire, was defendant guilty of negligence proximately causing the loss of the goods in question? A railroad company is only bound to use the same diligence to save freight stored in its warehouse, at its destination, from fire, as it uses to save its own property, where the shipper has been notified that it is held subject to his order and at his risk. Laporte v. Wells, F. & Co.'s Express, 23 A.D. 267, 48 N.Y.S. 295; E. O. Standard Mill. Co. v. White Line C. Transit Co. 122 Mo. 258, 26 S.W. 705; Bennitt v. The Guiding Star, 53 F. 937; Schmidt v. Blood, 9 Wend. 268, 24 Am. Dec. 143; Grieve v. New York C. & H. R. R. Co. 25 A.D. 518, 49 N.Y.S. 950.

Where the plaintiff alleges that his loss is occasioned by the negligence of defendant, he must prove it. Sheldon v. Hudson River R. Co. 29 Barb. 228; Longabaugh v. Virginia City & T. R. Co. 9 Nev. 296; Smith v. Hannibal & St. J. R. Co. 37 Mo. 295; Omaha & R. Valley R. Co. v. Clark, 35 Neb. 867, 23 L.R.A. 509, 53 N.W. 970; Kilpatrick v. Richardson, 37 Neb. 731, 56 N.W. 481; White v. Chicago, M. & St. P. R. Co. 1 S.D. 330, 9 L.R.A. 824, 47 N.W. 146; Balding v. Andrews, 12 N.D. 277, 96 N.W. 305, 14 Am. Neg. Rep. 615; Claflin v. Meyer, 75 N.Y. 260, 31 Am. Rep. 467; Schmidt v. Blood, 24 Am. Dec. 153, note.

OPINION

Statement

BRUCE J.

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, North Dakota. 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 and which reached Mandon 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...