Farr Co. v. Union Pac. R. Co.
| Decision Date | 30 August 1939 |
| Docket Number | No. 1766.,1766. |
| Parties | FARR CO. v. UNION PAC. R. CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William R. Kelly, of Greeley, Colo., for appellant.
E. G. Knowles, of Denver, Colo. (T. W. Bockes, of Omaha, Neb., on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
On January 16, 1937, The Farr Company, a corporation, herein designated as Appellant, delivered to the Union Pacific Railroad Company, a corporation, herein designated as Appellee, at Greeley, Colorado, seven hundred (700) bags of pinto beans consigned to C. S. Stopher and Company at Lexington, Kentucky, with notice to stop the car at Louisville, Kentucky, for partial unloading by E. S. Farrell & Son. The bill of lading expressly provided that the carrier should not be liable for loss caused by an Act of God.
The carload of beans was transported by Appellee and arrived at Louisville, Kentucky, on the night of January 20, 1937. Early on the morning of January 21 it was delivered by Appellee to its connecting carrier, the Southern Railway Company, and was transported to the yards of the Southern Railway Company, where it was shunted on to a side track next to the freight depot, spoken of as the "bug alley track." This track was higher than the floor of the freight house and was the highest ground in the yards. In reaching this place the car had to pass under the Pennsylvania railroad bridge, this point being a low place in the tracks leading to the Southern Railway yards.
Heavy rains had been falling in the Ohio River Valley for a number of days preceding the arrival of this car, and continued falling for a number of days thereafter. These heavy rains had resulted in flood conditions in and around Louisville by the time this car arrived.
The Ohio River continued to rise steadily for a number of days after the 21st of January, and these conditions culminated in the worst flood that Louisville had experienced since records had first been kept. The river rose higher and the flood waters exceeded the flood of 1884, which was the most severe flood experienced by Louisville up to the time of the flood of 1937. Some water was on the track under the Pennsylvania bridge when this car was switched into the yards of the Southern Railway Company. The flood waters continued to rise, so that after approximately 8 o'clock on the evening of January 21 it was impossible for switch engines to enter or leave the Southern Railway yards and all switching operations were suspended until after the flood waters subsided.
Farrell and Son did not appear to unload their portion of the shipment. No instructions concerning the disposal of the car were given to the Appellee until the afternoon of January 22, when Stopher and Company requested that the entire car be moved to Lexington. This could not be done due to the flooded entrance of the tracks under the Pennsylvania bridge.
This car of merchandise was the only car left in the yards of the Southern Railway Company. A considerable amount of freight was left stored in the freight house of the Southern Railway Company, but all other car loads of merchandise except this car of beans had been moved from the yards.
Appellee continued movements of freight from its freight depot during January 22 and 23 by truck. The freight so moved was less than carload lots and was delivered to connections on other railroads to prevent delay in movement and for the purpose of getting it started to its destination.
There was no water at the point where this car stood as late as four o'clock P. M. on the 23rd day of January. Never before had flood waters reached the place where this car of beans was standing. The previous high mark of flood waters at this point had been approximately 46.7 feet. That point was reached in the flood of 1884. Flood waters would have to rise to nearly 55 feet before the car would be inundated, or approximately nine feet higher than any flood had ever risen in the history of Louisville.
After the 21st of January all railroad operations in Louisville were in a chaotic condition and after about the 23rd of January all efforts in the line of transportation were directed to removing people to a place of safety. Sometime during the late part of the 24th or thereafter flood waters entered this car and the cargo of beans was entirely destroyed. After the flood subsided the beans were dumped as being useless.
Appellant filed suit against Appellee charging Appellee with failure to safely carry and deliver the beans to Appellant or to Appellant's consignee and with negligently permitting the beans at Louisville, Kentucky, while in transit in said car, to become soaked with water and to be destroyed, and asked to recover the value of the shipment.
After the introduction of testimony, Appellee moved for a directed verdict on the ground that the evidence was not sufficient to establish negligence or violation of the terms of the bill of lading because Appellant had failed to make a prima facie case to submit to the jury for its determination. The motion was sustained and the court directed a verdict for Appellee, upon which judgment was entered. From this ruling an appeal is taken to this court.
When damage is shown to have resulted from an immediate Act of God, such as a sudden and extraordinary flood, the carrier is exempt from liability unless the plaintiff proves that the defendant was guilty of some negligence in not providing for the safety of the goods. That he could do so must be proved by the plaintiff or must appear in the facts of the case. Memphis & C. Ry. Co. v. Reeves, 10 Wall. 176, 77 U.S....
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