Hardesty v. American Railway Express Co.

• Decision Date: 10 October 1922
• Citation: 119 A. 681,32 Del. 66
• Court: Delaware Superior Court
• Parties: LACEY L. HARDESTY, trading as HARDESTY-ESKRIDGE COMPANY, v. AMERICAN RAILWAY EXPRESS COMPANY, a corporation of the State of Delaware

119 A. 681

32 Del. 66

LACEY L. HARDESTY, trading as HARDESTY-ESKRIDGE COMPANY, v. AMERICAN RAILWAY EXPRESS COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, Sussex County

October 10, 1922

Superior Court for Sussex County, October Term, 1922.

Summons case, No. 1 February term, 1921.

Action against the defendant, a common carrier, to recover; first for its failure to deliver 15 crates, out of a total shipment of 206 crates of strawberries, consigned by the plaintiff from Princess Anne, Maryland, to Jersey City, New Jersey June 3, 1920; second, for negligent delay in delivering to the consignee at Jersey City, New Jersey, 253 crates of strawberries shipped in a refrigerator car from Seaford Delaware, June 12, 1920; third, for negligent failure to properly refrigerate said Seaford Shipment while in transit.

The plaintiff produced a bill of lading for 206 crates of stawberries in the shipment of June 3, 1920, from Princess Anne, Maryland, and showed the delivery of 191 crates to the consignee, or a failure to deliver 15 crates of said shipment.

He also showed that the Seaford shipment of June 12, 1920, was in a refrigerator car; that this car was properly and voluntarily iced by the plaintiff at the point of shipment; that the usual running time between Seaford and Jersey City was from eight to ten hours; that based on such time this car should have been delivered to the consignee in time for the early market of Monday, June 14th; that by reason of an overturned coal car blocking the tracks of the yard used by the defendant, the Seaford car was not delivered to the consignee until early in the morning of Tuesday, June 15th; that said berries were in good condition when delivered to the carrier, and that by reason of the delay in delivery, the berries were damaged when delivered to the consignee.

The evidence of the defendant tended to show that the original seal of the Princess Anne car was intact when the car was placed for delivery to the consignee in the yard at Jersey City. The defendant, therefore, contended that the plaintiff had loaded only 191 crates of strawberries in said car, instead of 206 crates, as claimed by him. Defendant's evidence also tended to show that there was no delay in transit in the Seaford shipment; that such car was placed in the usual manner for unloading at about 2 o'clock in the morning of Tuesday, June 14th, that it was, therefore, ready for unloading in time for the early market of that day, and that any delay in unloading was due to the negligence of the consignee and not to any negligence of the defendant.

Verdict for plaintiff.

Daniel J. Layton for plaintiff.

Frank M. Jones for defendant.

RICE and HARRINGTON, J. J., sitting.

OPINION

HARRINGTON, J., charging the jury:

In order for the plaintiff to recover, he must prove to your satisfaction by a preponderance of the evidence, one or more of the acts alleged in the declaration. There are three things alleged: first, the acceptance of a certain quantity of strawberries in its capacity as a common carrier, and a failure to deliver the same to the consignee; second, negligent delay in transporting and delivering certain perishable property, namely, strawberries; and third, negligent lack of proper refrigeration in said delayed shipment of strawberries.

In Klair & Hollingsworth v. P. B. & W. R. R., 2 Boyce 274, 302, 78 A. 1085, 1096, this court said:

"The liability of a common carrier has been well stated by our own courts, and we say to you as was said in the case of Klair v. Wilmington Steamboat Co., 20 Del. 51, 4 Penne. 51, 54 A. 694: 'A common carrier is bound to exercise the strictest care, and to deliver safely at their place of destination, the goods entrusted to him. He is regarded by the law in the light of an insurer; and in case the goods are injured, lost or destroyed, nothing will excuse or discharge him, but the act of God, or of the public enemies. By the act of God, is meant such inevitable accident as cannot be prevented by human care, skill or foresight, but results from natural causes, such as lightning and tempest, floods and inundation, etc.' * * * Therefore, in actions against common carriers, founded on their ordinary liability for the loss of goods, the inquiry is not whether the carrier has used due care, or been guilty of negligence, but whether he can show that the loss happened by inevitable accident or by the public enemies."

This rule is subject, however, to some modifications. In the absence of a specific agreement as to the time for delivery, it is well settled that a common carrier, though responsible for negligence, is not an insurer against delays in transit. It is also well settled that it is not an insurer against, nor, in the absence of proof of negligence on its part, is it responsible for any inherent natural tendency of perishable property to depreciate or decay. Truax v. P. W. & B. R. R. Co., 8 Del. 233, 3 Houst. 233, 245; P. R. R. Co. v. Clark, 118 Md. 514, 85 A. 613; 10 C. J. (Carriers) § 148, p. 122.

Under its common-law duty, a carrier is bound to use all reasonable effort to deliver all shipments received by it in a reasonable length of time under the circumstances proved; having due regard for the character of the shipment, the apparent necessity for its speedy delivery, if of a perishable nature, and all other facts in the case. Truax v. P. W. & B. R. R. Co., 8 Del. 233, 3 Houst. 233, 247; Reed and Walker v. P. W. & B. R. R. Co., 3 Houst. 176, 207; N.Y. P. & N. R. R. Co. v. Peninsula Produce Exchange, 122 Md. 215, 89 A. 433; Stevens v. Northern Central R. R. Co., 129 Md. 215, 98 A. 551; Pa. R. R. Co. v. Clark, 118 Md. 514, 85 A. 613; 4 R. C. L. (Carriers) 206.

It is likewise its duty to exercise such a degree of diligence in the care of all shipments as the character of the goods shipped and the circumstances require. When a carrier undertakes the transportation of perishable property, it is its duty to furnish cars especially adapted to the preservation of that class of property, and if refrigerator...