O. J. Barnes Co. v. Northern Pacific Railway Co.

• Decision Date: 21 June 1919
• Citation: 173 N.W. 943,42 N.D. 411
• Court: North Dakota Supreme Court

173 N.W. 943

42 N.D. 411

O. J. BARNES COMPANY, a Corporation, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, and the Chicago, Milwaukee, & St. Paul Railway Company, a Corporation, Appellants

Supreme Court of North Dakota

June 21, 1919

Appeal from the District Court of Grand Forks County, Cooley, J.

Affirmed.

Watson Young, & Conmy, for appellants.

It is elementary law that all parts of the charge must be construed together. If, taken as a whole, the charge is substantially correct, the judgment must not be disturbed. 1 Hayne, New Trial, No. 131, p. 676.

"A new trial should never be granted in a civil action for errors in instructions, however egregious they may be, where the verdict was the only one warranted by the law applicable to the case." McGrath v. N. P. R. Co. (Minn.) 141 N.W. 166.

"Where the record shows that the case of a plaintiff is inherently and fatally defective, a judgment against him will not be reversed for instructions, however erroneous." (79 U.S 401.) C. Hebrard v. Jefferson Gold & S. Min. Co. 33 Cal. 290; Meguire v. Convine, 101 U.S. 108; West v. Camden, 135 U.S. 521; Butler v. Pitt R. Co. (Ind.) 46 N.E. 92; Mehurin v. Stone, 37 Ohio St. 54.

Among the state authorities there is a conflict as to whether or not a recovery will be allowed where goods are damaged by an act of God, after a negligent delay. Rodgers v. N. P. R Co. 10 L.R.A.(N.S.) 658; C. & E. R. Co. v. Schaff Bros. (Ind.) 117 N.E. 869.

This shipment being interstate, the Federal rule must be followed.

Where property is destroyed by an act of God, but would not have been within the range of the destructive force except for the negligent delay of the carrier, it is established as the rule accepted and enforced in the Federal courts, that the act of God, not the negligent delay of the carrier, is the proximate cause of the loss, and that the negligent delay of the carrier is too remote as a contributing cause to entail liability upon him. Clark v. Barnwell, 12 How. 272 13 L.Ed. 985; Memphis R. Co. v. Reeves, 10 Wall. 176, 19 L.Ed. 909; Western Transp. Co. v. Downer, 11 Wall. 129, 20 L.Ed. 160; St. Louis, I. M. & S. R. Co. v. Commercial Union Ins. Co. 139 U.S. 223, 35 L.Ed. 154, 11 S.Ct. 554; Thomas v. Lancaster Mills, 19 C.C.A. 88, 71 F. 481; Cau v. Texas & P. R. Co. 194 U.S. 427, 48 L.Ed. 1053, 24 S.Ct. 663; New Orleans & N.E. R. Co. v. National Rice Mill Co. 234 U.S. 80, 58 L.Ed. 1223, 34 S.Ct. 726; Seaboard Air Line v. Mullin (Fla.) 70 So. 467.

A published tariff so long as it is in force is binding on the shipper and the carrier and has the force of a statute. And it must be strictly followed by the court until changed by the Interstate Commerce Commission. Soo R. Co. v. Campbell, 35 S.Ct. 33; Penn. Ry. Co. v. Int. Coal Co. 230 U.S. 184; Great Northern R. Co. v. O'Connor, 232 U.S. 508; St. L. I. M. R. v. Starbird, 243 U.S. 604; George W. Lardie & Son v. Manistee & N.E. R. Co. (Mich.) 158 N.W. 31.

And it is well settled in the United States courts, that where the loss occurs because of an exempted cause, such as heat and frost, the burden is on the shipper to show not only that there was delay, but that the delay was negligent. Carr v. Texas & P. R. Co. 194 U.S. 427; Northwestern Mill. Co. v. C. B. & Q. R. 160 N.W. 1028; New Orleans R. Co. v. Milling Co. 234 U.S. 80; The New Orleans, 26 F. 44; The Portuguese, 35 F. 670, 67 F. 794; Hurst v. St. Louis R. Co. 94 S.W. 794; Heil v. St. Louis R. Co. 16 Mo.App. 363; Thyll v. N.Y. R. Co. 87 N.Y. 345.

McIntyre & Burtness, for respondent.

"Different classes of goods may reasonably require greater expedition, depending upon the questions as to whether they are perishable or liable to freeze or to be affected by changes in the weather. All such circumstances and incidents are to be taken into consideration in deciding upon the question whether the carrier has been guilty of an unreasonable delay, and each case must be determined by its own facts." Hutchinson, Carr. 3d ed. § 652; 10 C. J. 286; McGraw v. R. Co. (W. Va.) 41 Am. Rep. 696; Alabama R. Co. v. McKenzie, 45 L.R.A.(N.S.) 18, 77 S.E. 647; Woodward v. R. Co. 73 S.E. 290; Hewitt v. C. B. Q. (Iowa) 19 N.W. 790, 4 R. C. L. 738; Elliott v. R. Co. (S.D.) 161 N.W. 347.

"Where the bill of lading recited that the goods were received in apparent good condition, the burden of proof is on the carrier to show that they were not in good condition when received." 10 C. J. 371; 4 R. C. L. 913; Streubeling Co. v. Merc. Dis. Co. (Wis.) 126 N.W. 21; Central of Ga. R. Co. v. Dowen (Ga.) 65 S.E. 1091.

"If a carrier negligently and carelessly delays a shipment, and the goods are overtaken in transit and damaged by an act of God, which would not have caused the damage had there been no delay, the carrier is liable even though the act of God could not reasonably have been anticipated." Alabama R. Co. v. Quarles (Ala.) 5 L.R.A.(N.S.) 867, 40 So. 120; Central of Ga. R. Co. v. Lumber Co. 54 So. 205, Ann. Cas. 1912D, 965 & note; Wald v. Pittsburg R. Co. (Ill.) 44 N.E. 888; Green Wheeler Shoe Co. v. Chicago, R. R. Co. (Iowa) 106 N.W. 498; Bibb Brown Corn Co. v. R. Co. (Minn.) 102 N.W. 709; Wabash R. R. v. Sharpe (Neb.) 107 N.W. 758; Read v. Spaulding, 30 N.Y. 630; Chicago R. Co. v. Miles (Ark.) 123 S.W. 775; Lamb v. Mitchell (Ga.) 84 S.E. 213; Sandy v. Lake St. R. R. Co. (Ill.) 85 N.E. 300.

OPINION

BIRDZELL, J.

This is an appeal from an order entered in the district court of Grand Forks county, granting a new trial. The action is one to recover damages alleged to have been occasioned by a delay in the shipment of a car load of potatoes from Grand Forks, North Dakota, to Vermillion, South Dakota, which delay is alleged to have subjected the potatoes to a low temperature, resulting in a considerable portion of them being frozen. It appears that the plaintiff placed a false bottom in the car and loaded it at Grand Forks on November 3, 1916. The car was a refrigerator car; the potatoes were contained in burlap sacks, and were so loaded as to leave an air space between the inside of the car and the potatoes. The route traveled was from Grand Forks to St. Paul, a distance of 320 miles, and from St. Paul to Vermillion, a distance of about 375 miles. The car arrived at its destination on the afternoon of November 17, 1916, or some fourteen days after it was loaded. The evidence showed that the temperature was lowest during the latter days of the transit. The shipment was made under whet is termed option No. 1 of a tariff previously approved by the Interstate Commerce Commission and on file with it, and at the station of the Northern Pacific Railway Company at Grand Forks. Under this option the applicable tariff required the shipper to assume all responsibility for loss or damage due to cold or heat, not the direct result of the negligence of the carrier; and any warming of cars before loading was to be performed by the shipper at his own expense (the shipper was also required to provide false flooring, stoves, fuel, etc.). The tariff directs carriers to refuse to accept shipments upon which may be noted directions to place the car in a roundhouse if the temperature goes below zero, or that the car must make schedule time.

The case was submitted to a jury and a verdict returned for the defendant. A special question was also submitted, in response to which the jury found that nine days was the ordinary and usual time necessary to move a shipment from Grand Forks, North Dakota, to Vermillion, South Dakota. The plaintiff later moved for a judgment non obstante, and, in the event of a denial of this motion, for a new trial. The former motion was denied and the latter granted.

In the order granting the new trial the trial court indicated that it was granted on the sole ground of an error...