Naas v. Chi., R. I. & P. Ry. Co.

• Decision Date: 27 October 1905
• Citation: 104 N.W. 717,96 Minn. 84
• Court: Minnesota Supreme Court
• Parties: NAAS et al. v. CHICAGO, R. I. & P. RY. CO.

96 Minn. 84

104 N.W. 717

NAAS et al.

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Minnesota.

Oct. 27, 1905.

Appeal from Municipal Court of Minneapolis; Charles L. Smith, Judge.

Action by Louis K. Naas and others against the Chicago, Rock Island & Pacific Railway Company. Verdict for defendant, and from an order granting a new trial it appeals. Reversed.

Syllabus by the Court

As against the objection that it was incompetent, immaterial, and no foundation laid, it was not error to receive in evidence a written memorandum or report concerning which the party who executed it had testified that it was correct, made in the usual course of business, and turned into the office of his employer in the customary manner, although the witness did not state distinctly that he had no independent recollection of the facts contained in the report.

The court committed no prejudicial error in instructing the jury upon the question whether the consignee had received proper notice of the delivery of the car by the common carrier. John Lind and A. Ueland, for appellant.

George C. Stiles, for respondents.

LEWIS, J.

Respondent Conrad Schopp Fruit Company, of St. Louis, shipped a carload of strawberries from that point to Naas Bros., commission merchants, at Minneapolis, in a refrigerator car furnished by the Chicago, Burlington & Quincy Railway Company. Appellant was a connecting carrier, and transported the car from Burlington, Iowa, to Minneapolis, its destination. The berries having deteriorated, this action was brought by the shipper and consignees to recover damages. A verdict having been returned for appellant, the court granted a motion for a new trial, and, if there was sufficient evidence to sustain the verdict, appellant must prevail upon this appeal, unless the court committed errors in law during the trial. Having come to the conclusion that the case must be reversed upon the grounds hereafter set forth, it will not be necessary to consider two questions presented and argued by appellant in support of its motion for judgment non obstante, viz.: Whether the contract contained in the bill of lading was binding upon both parties; and, if so, was the stipulation as to the method of estimating damages waived by appellant? And, further, was the complaint sufficient to charge appellant with negligence in failing to properly ice the car? For the purposes of this case only we will assume that the complaint was sufficient.

As a part of appellant's case upon the question of its negligence in not properly icing the car, it offered in evidence what is called a ‘station refrigerator car report.’ A witness was called, who testified that he was appellant's yard clerk at Minneapolis, and that his duties were to take a record at 7 o'clock in the morning of all cars on the team track; that he made an examination of the whole yard at 7 o'clock a. m., June 6th, of the cars upon the...