Johnson v. N.Y., N. H. & H. R. R.

Decision Date06 December 1913
Citation111 Me. 268,88 A. 988
PartiesJOHNSON et al. v. NEW YORK, N. H. & H. R. R.
CourtMaine Supreme Court

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Action by G. B. Johnson and others against the New York, New Haven & Hartford Railroad. A verdict was directed for defendant Exceptions sustained, and judgment entered for plaintiff pursuant to stipulation.

Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, and PHILBROOK, JJ.

Oakes, Pulsifer & Ludden, of Auburn, for plaintiffs.

Symonds, Snow, Cook & Hutchinson, of Portland, for defendant. N. & H. B. Cleaves & S. C. Perry, of Portland, for trustee.

SAVAGE, C. J. Case for damages occasioned by alleged negligent delay in transportation of a car of strawberries from the defendant's freight yard in South Boston, Mass., to Auburn, Me. The case comes before us on exceptions to an order of a verdict for the defendant, with a stipulation that, if the exceptions are sustained and the order overruled, the law court is to enter judgment for the plaintiff.

Upon exceptions to an order of nonsuit or of verdict for the defendant, the duty of the court is simply to determine whether, upon the evidence, under the rules of law, the jury could properly have found for the plaintiff. We are not called upon to express our own judgment of the probative force of the testimony. Whatever our own conclusions might have been, if there was evidence which the jury were warranted in believing, and upon the basis of which honest and fair-minded men might reasonably have decided in favor of the plaintiffs, then the exceptions must be sustained. In such a case it is reversible error to take the issue from the jury.

We have carefully examined the evidence in this case. There is not much controversy about the facts. And, where there is a dispute, there are no circumstances which take the testimony out of the operation of the general rule that a jury is the proper tribunal to determine the credibility of witnesses.

We think a jury might reasonably find the following facts to be true: In the early morning of June 21, 1909, a car of strawberries from New Jersey or Delaware came over the defendant's road into its yard at South Boston. It was consigned to one Littlefield. Littlefield removed some of the strawberries and sold the rest of them in the car to the plaintiffs, to be shipped to Auburn. He received a bill of lading, by which the car was routed over the Union Freight Railroad and the Boston & Maine Railroad. The defendant knew that the car contained strawberries and of course knew that they were perishable. Notice of the order to ship the car to Auburn was received at the defendant's agent's department as early as 6:45 a. m. that day and was received by the yard department at 9 or 9:30 a. m. The car was not moved, however, until 9:15 p. m., when, following the usual route of freight going to the Boston & Maine Railroad, it was taken over various tracks of the defendant, of the Boston Terminal Company, and of the Boston & Albany Railroad to Dover street. There it was taken at 1:10 a. m., June 22d, by the Union Freight Railroad, having been about 18 hours traversing a distance of two miles or less. The Union Freight Railroad hauled it a distance of less than two miles and delivered it to the Boston & Maine at 6:20 a. m. It remained with the Boston & Maine in Boston until 1:50 p. m. Then that company hauled it to Portland and delivered it to the Maine Central Railroad at 5:20 a. m., June 23d. It finally reached Auburn at noon of that day. It had come about 150 miles in the 53 hours after the order of shipment was given. The strawberries, when received at Auburn, were in a badly damaged condition, due to delay in transit.

The plaintiffs do not count upon any special contract but upon the general liability of the defendant as a common carrier and as the initial carrier. They claim that the defendant was itself the chief offender in respect to negligent delay, but that the subsequent carriers were also negligent. They contend, however, that the defendant as initial carrier is liable for the whole damage under Act June 29, 1906, c. 3591, 34 Stat 584 (U. S. Comp. St. Supp. 1911, p. 1288). There was also evidence, which a Jury would be warranted in believing, that in the ordinary course of carriage berries ordered shipped as these were should reach Auburn from 4 to 6 o'clock the next morning.

The duty of the defendant, as the forwarding carrier, and as well the duty of all connecting carriers, was to exercise reasonable care and diligence in transportation to transport in a reasonable time, without unnecessary delay, to prevent, so far as is reasonable and practicable, any loss or damage which may be occasioned by delays in transit. Fisher v. Railroad Co., 99 Me. 338, 59 Atl. 532, 68 L. R. A. 390, 105 Am. St Rep. 283. What is reasonable diligence in this class of cases, as in all others where reasonableness is the standard, must depend upon the circumstances of the particular case. It has been held that the carrier may discriminate under some circumstances between different classes of goods when the exigencies require it, as where one class is perishable and the other is not. In such case, if unable to carry both classes at the same time, the carrier may give priority of carriage to the perishable goods. And there are other emergencies which may call for discrimination. Marshall v. New York Cent. R. Co., 45 Barb. (N. Y.) 502; Peet v. Chicago & N. W. Ry. Co., 20 Wis. 594, 91 Am. Dec. 446; Wyman, Public Service Corporations, §§ 840, 841.

On the other hand, in the absence of a special contract or of special circumstances which take the case out of the general rule, the carrier is not bound to use extraordinary means to forward even perishable freight. It is not bound to make up special trains or perform special service. The shipper must be understood to contemplate carriage by the regular trains on the ordinary schedules. If he desires special service, he may contract for it.

In this case there was no special contract But it was the duty of the defendant, we think, to forward such perishable freight as strawberries at least by its earliest scheduled opportunity or by the earliest train it made up in the course of its business, and, in any event, at as early an hour as it had given the shipper reason to understand that it would be forwarded.

If there were no other facts than those already stated, we think a jury would be warranted in saying that there was unreasonable delay somewhere in forwarding and transporting this car of strawberries; the time occupied being 53 hours instead of 24 hours or less, the ordinary time. It is so far sufficient that it puts the onus of explanation on the defendant.

In defense the following additional facts are shown: The car at 6:45 a. m., June 21st, was in the defendant's yard. To get it to the Boston & Maine it was necessary to get it over the tracks of the Boston Terminal Company to the Union Freight Company. There is no direct trackage from the defendant's yard to the Union Freight Company. The Boston Terminal tracks, which at the train shed are 28 in number, lie between. Cars are shifted from defendant's yard to the Union Freight Company by being switched back and forth from track to track on the terminal company's tracks. Several hundred passenger trains daily enter and leave the terminal company's station, known as South Station. During the hours of passenger train service, or between 6 a. m. and midnight, no freight was allowed to be hauled over the terminal company's tracks without special permission of the terminal company. But it appears that special permission was given from time to time, when the defendant asked for it.

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