Jolliffe v. Northern P. R. Co.

• Decision Date: 05 April 1909
• Citation: 100 P. 977,52 Wash. 433
• Parties: JOLLIFFE v. NORTHERN PAC. R. CO.
• Court: Washington Supreme Court

100 P. 977

52 Wash. 433

JOLLIFFE v. NORTHERN PAC. R. CO.

Supreme Court of Washington

April 5, 1909

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by N. T. Jolliffe against the Northern Pacific Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.

Sayre &amp Sutherland, for appellant.

Carroll B. Graves, for respondent.

DUNBAR J.

On September 27, 1907, the plaintiff shipped a car land of horses at Grafton, N. D., to be transported over the lines of the Northern Pacific Railway Company to Seattle, Wash. The shipment reached its destination on October 13th, having been en route about 16 days. This action is for damages for injury to the horses, most of the damages being alleged to have been caused by the delay of the cars; it being conclusively shown that the cars were unduly delayed. It is not necessary to mention specifically the particular delays charged. The shipment was under a written contract and it is the contention of the plaintiff that the delays being unreasonable, were due to negligence of the defendant that the horses shrunk an unusual amount by reason of these delays, thereby depreciating in value, and necessitating their being cared for from one to three months before they were fit to sell. At the close of plaintiff's case the court granted defendant's motion for a nonsuit, and thereafter overruled plaintiff's motion for a new trial. Judgment was entered, and appeal followed.

In the trial of the cause the appellant sought to testify as to the cause of the delay, and what he was informed by the trainmen was the cause of said delay. This was objected to, and the appellant was only allowed to testify to what he knew of his own knowledge. This is assigned as one of the errors in the case. The main contention in this case is founded on the following statement in respondent's brief, viz., that a carrier is only bound to use ordinary care and diligence to avoid unreasonable delay, and the fact that there is an unusual delay does not, of itself, show a breach of duty in showing whether or not there was a negligent delay. The respondent says: 'While it is not contended that a carrier can contract against its own negligence, yet such stipulations as these, in a contract of this character, are upheld, except where the attempt is made to contract against negligence; and, in order for the shipper to avoid the effect of such a stipulation, the burden is upon him to prove that the act complained of is the negligent act of the carrier. In this case, and under this stipulation, it is not sufficient to show the mere fact of a delay, but the plaintiff must go further, and affirmatively show that such delays were caused by the negligence of the carrier. In the absence of a special contract limiting his liability the carrier must affirmatively show that the loss was occasioned by some cause for which he was not responsible; but, where there is a limited liability contract, and the loss falls within one of the excepted clauses, the burden of proof is upon the shipper to show negligence. The presumption, in the absence of proof to establish negligence, will be that the carrier has done his duty.' This was the theory accepted by the court, and the theory upon which the cause was tried. The stipulation...