Johnson v. Chicago, Milwaukee, St. Paul & Pacific R. Co.

• Decision Date: 20 September 1968
• Docket Number: No. 21998.,21998.
• Citation: 400 F.2d 968
• Parties: V. L. JOHNSON, d/b/a V. L. Johnson Lumber Co., Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

400 F.2d 968 (1968)

V. L. JOHNSON, d/b/a V. L. Johnson Lumber Co., Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO., Appellee.

No. 21998.

United States Court of Appeals Ninth Circuit.

September 20, 1968.

COPYRIGHT MATERIAL OMITTED

Jerrold C. Park (argued) of McFadden & Park, St. Maries, Idaho, for appellant.

James E. Nelson (argued), B. E. Lutterman, Warren H. Ploeger, Seattle, Wash., Sidney E. Smith, Coeur d'Alene, Idaho, for appellee.

Before JOHNSEN,^* BROWNING and CARTER, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

This diversity action for damages, removed from the state court, was commenced by V. L. Johnson, d/b/a V. L. Johnson Lumber Co., hereafter "Shipper," against the Chicago, Milwaukee, St. Paul & Pacific Railroad Co., hereafter the "Railroad." At the close of the Shipper's case to a jury, the court on motion of the railroad, entered a dismissal with prejudice on the grounds of insufficiency of the evidence.¹

The sole questions presented for decision are:

(1) the sufficiency of the evidence as to liability;

(2) the sufficiency of the evidence as to damages.

The Shipper, in his complaint, set forth three causes of action: (1) that the Railroad, a common carrier, discontinued freight services theretofore provided to the Shipper and refused to ship lumber, in violation of its common law and statutory duty as a carrier; (2) that a tunnel cave-in on the Railroad's line, which resulted in the suspension and termination of rail service to the Shipper, was the direct result of the Railroad's negligence and failure to reasonably maintain its line; (3) that following the cave-in and suspension of the service, the Railroad negligently and in violation of its statutory duty failed to make reasonable efforts to repair the tunnel and restore service.

The Railroad denied the allegations of plaintiff's complaint and as an affirmative defense alleged that the cave-in, resulting in the suspension of service, "was not caused by any act, omission or negligence of the defendant, but was proximately caused by an Act of God."

The Shipper, from 1963 through 1966, was the owner and operator of a sawmill at Elk River, Idaho. During this period he shipped substantial quantities of lumber over the Railroad's line, approximately 90 percent of which was transported interstate outside of Idaho. Elk River is located 20 miles from the nearest paved road and 50 miles from the nearest major highways. The Railroad is the only rail carrier so serving Elk River and the only common carrier hauling lumber from Elk River. The Railroad's branch line runs from Elk River to St. Maries, Idaho, where it connects with the Railroad's main line.

On this branch line existed the Neva Tunnel. In April 1966, a partial cave-in or blockage of this tunnel caused temporary suspension of rail service in and out of Elk River. The blockage was cleared within a few days and service restored, but on May 12, 1966, after inspection of the tunnel by agents of the Railroad, service was discontinued without any prior notice to Shipper.

Service was restored about October 17, 1966, subsequent to the filing of this action but prior to the trial thereof in April, 1967. The restoration of the service was brought about by "daylighting" or substituting an open cut for the tunnel. This work was done at the joint expense of the Railroad and the State of Idaho.

ISSUE AS TO LIABILITY

It is Hornbook law that the plaintiff Shipper is entitled to the benefits of all reasonable inferences that can be drawn by the jury from the evidence, and that the credibility of the witnesses and the weight their testimony deserves are questions for the jury.

The Shipper's first cause of action is based on the obligation of the Railroad, a carrier, to receive, carry and deliver all goods offered to the carrier for transportation. The obligation rests on common law principles, Wabash Railroad Company v. Pearce, 192 U.S. 179, 187, 24 S.Ct. 231, 48 L.Ed. 397 (1904), as well as on statute. 49 U.S.C. Sec. 1 (4) and (11). In fact the federal statute, supra, is declaratory of common law. Illinois Central R. Co. v. River, etc., Coal, etc., Co., 150 Ky. 489, 150 S.W. 641, 44 L.R.A.,N.S., 643 (1912). This obligation of the carrier at common law is independent of the contract of carriage. Hannibal Railroad Co. v. Swift, 12 Wall. (79 U.S.) 262 at 270, 20 L.Ed. 423 (1870). This common law duty and obligation of the carrier has not been abridged by the Interstate Commerce Act. Section 22 of the Act, 49 U.S.C.A. § 22 reads in part:

"* * * nothing in this chapter act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies; * * *."

Pennsylvania R. R. Co. v. Puritan Coal Mining Co., 237 U.S. 121, 129, 35 S.Ct. 484, 59 L.Ed. 867 (1915), and Pennsylvania R. R. Co. v. Sonman Shaft Coal Company, 242 U.S. 120, 124, 37 S.Ct. 46, 61 L.Ed. 188 (1916), to the same effect.

Idaho law whose pertinency we do not decide, also provides that the common law duties of carriers are not supplanted or limited by Idaho law. Idaho Code § 62-402 and 62-403.

Thus, the primary burden is on the carrier, once its neglect or refusal to transport goods is shown, to present a defense or excuse for its non-performance. In an early case in this circuit, Swayne & Hoyt v. Everett, 255 F. 71 (9th Cir. 1919) this court said:

"It does not admit of doubt that a common carrier, with certain well-established exceptions, is under legal obligation to carry the goods of any member of the public who may tender them for carriage. That such a carrier, subject to such legal obligation, may show that it was prevented from performing it by act of God or a public enemy, or by some other cause over which it had no control, is readily conceded, but in all such cases the defense is an affirmative one, and the burden is upon the carrier to both plead and prove it." 255 F. at p. 74. Emphasis supplied

Later decisions have expanded these exceptions only slightly, holding that the carrier is liable without proof of negligence unless it affirmatively shows that (1) the loss resulted from acts of the Shipper; (2) acts of God; (3) public enemy; (4) public authority, or (5) the inherent vice or nature of the commodity. Secretary of Agriculture v. United States, 350 U.S. 162, 165 note 9, 76 S.Ct. 244, 100 L.Ed. 173 (1956); Missouri Pacific Railroad Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964).

The Railroad alleged an act of God as an affirmative defense. The burden was on the Railroad to affirmatively prove this defense. Secretary of Agriculture v. United States, supra; Missouri Pacific Railroad Co. v. Elmore & Stahl, supra. As stated by Judge Fee while on the district court, in Montgomery Ward & Co. v. Northern Pacific Terminal Co., 128 F.Supp. 475, 511 (1953), "Even where prevented by an act of God or the public enemy, there must be an affirmative showing that it (the carrier) did everything in its power to carry out its absolute obligation."

The carrier is not excused if the interference with its service could have been avoided by forethought. Applying this principle, the Supreme Court imposed liability upon an Express Company for gold lost to a band of armed robbers, even though the receipt for the gold issued by the Express Company exempted it from losses due to "mobs, riots, insurrection or pirates." The Company had a choice of two routes, one a safe route and the other running through dangerous and unsettled country. By failing to choose the safer route, the carrier was negligent and subjected itself to liability. United States Express Co. v. Kountze Bros., 8 Wall. (75 U.S.) 342, 19 L.Ed. 457 (1869). A carrier must anticipate problems and provide against them. Baker v. St. Louis etc. Railroad Co., 145 Mo.App. 189, 197, 129 S.W. 436, 438 (1910); Chicago, B. & Q. R. Company v. Manning, 23 Neb. 552, 37 N.W. 462, 464-465 (1888). Lehigh Valley Railroad Co. v. Allied Machinery Company of America, 271 F. 900, 903 (2 Cir. 1921), cert. denied 256 U.S. 704, 41 S.Ct. 625, 65 L.Ed. 1180.

The Shipper's second cause of action was based on negligence. A carrier is required to use diligence and care in the performance of its duties, United States Express Co. v. Kountze Bros., supra; New York Central Railroad Company v. Lockwood, 17 Wall. (84 U.S.) 357, 383, 21 L.Ed. 627 (1873); Bank of Kentucky v. Adams Express Co., 93 U.S. 174, 23 L.Ed. 872 (1876). See Chicago & E. I. Railroad Co. v. Collins Produce Company, 249 U.S. 186, 39 S.Ct. 189, 63 L.Ed. 552 (1919).

As to the excepted causes, such as an act of God, which will ordinarily relieve the carrier from liability, the carrier may nevertheless be liable because of its own negligence or that of its agents, servants or employees. Robinson v. Bush, 199 Mo.App. 184, 200 S.W. 757, 760 (1918); Fean v. Alabama Great Southern Railroad Co., 26 Ohio App. 96, 159 N.E. 487, 489 (1927); L. E. Whitlock Trucking Service, Inc. v. Regal Drilling Co., 333 F.2d 488, 491 (10 Cir. 1964).

Even where the loss is caused by an act of God or other excepted cause, if the carrier's negligence mingles with the excepted cause as an active or cooperating cause, there is liability on the carrier. Chesapeake & O. Ry. Co. v. J. Wix and Sons Ltd., 87 F.2d 257, 259 (4 Cir. 1937); Farr Co. v. Union Pac. R. Co., 106 F.2d 437, 439 (10 Cir. 1939). See; Newmark v. Pacific Freight Lines, 67 Cal.App.2d 548, 155 P.2d 68 (1945); Chicago & E. I. R. R. Co. v. Collins Produce Co., 235 F. 857, aff'd 249 U.S. 186, 39 S.Ct. 189, 63 L.Ed. 552.

Since we hereafter hold that there was sufficient evidence to go to the jury on both the Shipper's first and second causes of action, we do not comment on Shipper's third cause of action that the Railroad failed to make reasonable efforts to repair the tunnel and restore service; and the Shipper's other contention that the Railroad should have used...