Nat'l Elevator Co. v. Great N. Ry. Co.

• Decision Date: 17 January 1919
• Docket Number: No. 20900.,20900.
• Citation: 141 Minn. 407,170 N.W. 515
• Parties: NATIONAL ELEVATOR CO. v. GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

141 Minn. 407

170 N.W. 515

NATIONAL ELEVATOR CO.

v.GREAT NORTHERN RY. CO.

No. 20900.

Supreme Court of Minnesota.

Jan. 17, 1919.

Appeal from Municipal Court of Minneapolis; E. A. Montgomery, Judge.

Action by National Elevator Company against Great Northern Railway Company. Verdict for plaintiff, and, from an order denying its motion for a new trial, defendant appeals. Order affirmed.

Syllabus by the Court

In the absence of a special contract a common carrier is not an insurer of the time of delivery as he is of safe delivery. He must use diligence and must deliver within a reasonable time and is liable for negligence.

The delay may be so great and unusual and unless explained so unreasonable as to put upon the carrier the burden of proving absence of negligence.

Evidence of the time taken in a number of other shipments between the same points as the one involved in suit held competent proof as to the usual and reasonable time.

A shipment referred to in the evidence is held to have been so unusually and so long delayed that the burden of proof was upon the defendant of excusing its delay and showing that it was not negligent.

While the development of a hot box may be such an incident to railway operation that the carrier may excuse a particular delay resulting from it, the evidence offered by the defendant was insufficient as an excuse, and it was not error to strike it out. M. L. Countryman, of St. Paul, and Cobb, Wheelwright & Dille and John C. Benson, all of Minneapolis, for appellant.

Lancaster, Simpson & Purdy, of Minneapolis, and A. C. Remele, of Madelia, for respondent.

DIBELL, J.

Action to recover damages sustained by the plaintiff through the delay of the defendant in the shipment of a carload of wheat. There was a verdict for the plaintiff, and the defendant appeals from the order denying its motion for a new trial.

The wheat was shipped from Baker to Duluth via Sandstone. In accordance with custom it was inspected at the latter point by the state, the sample was sent to Duluth, and it was then for sale on the Duluth market as wheat on track. The car started from Baker on September 17, 1915, in the evening, and arrived at Sandstone on Saturday, September 25, in the afternoon, and the wheat was sold on the Duluth market on the following Monday. The plaintiff claims that if the wheat had been transported with reasonable dispatch it would have reached Sandstone at such time that it would have been sold on the Duluth market on September 22d; and that because of the delay it suffered a loss through the decline of the market.

[1] 1. In the absence of a special contract a common carrier of goods is not an insurer of the time of delivery as he is of safe delivery. He must use diligence. He is liable for negligence. He must deliver within a reasonable time. He may excuse his delay. These are well-settled general principles determinative of the common-law liability of the carrier. Parsons v. Hardy, 14 Wend. (N. Y.) 216, 28 Am. Dec. 521;Delaney v. U. S. Exp. Co., 70 W. Va. 502, 74 S. E. 512;Palmer v. Atchison, etc., R. Co., 101 Cal. 187, 35 Pac. 630;Pittsburg, etc., R. Co. v. Knox, 177 Ind. 344, 98 N. E. 295;American Exp. Co. v. Smith, 33 Ohio St. 511,31 Am. Rep. 561;Johnson v. East Tenn., etc., Co., 90 Ga. 810, 17 S. E. 121;Chicago, etc., R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501; Dobie, Bailments and Carriers, 360; 2 Hutchinson, Carriers, § 651 et seq.; 1 Moore, Carriers, 341; 10 C. J. 283; 5 A. & E. Enc. Law, 254; 4 R. C. L. 737. There was no special contract of carriage between the plaintiff and the defendant.

2. The delay may be so great and unusual, and, unless explained, so unreasonable as to put upon the carrier the burden of showing that it was not the result of a want of diligence. Mann v. Birchard, 40 Vt. 326, 94 Am. Dec. 398;Woodford v. Baltimore, etc., R. Co., 70 W. Va. 195, 73 S. E. 290;Woods v. Toledo, etc., R. Co., 159 Ill. App. 209;Shoot v. Cleveland, etc., R. Co., 145 Ill. App. 532;McElwain v. Union, etc., R. Co., 101 Neb. 484, 163 N. W. 845;Jolliffe v. Northern Pacific Ry. Co., 52 Wash. 433, 100 Pac. 977;Cincinnati, etc., R. Co. v. Myers, 165 Ky. 700, 178 S. W. 1038; 5 A. & E. Enc. Law, 254; 1 Moore, Carriers, 358, 360; 4 R. C. L. 916, 917, 922; 10 C. J. 301.

The rule is one of practical convenience and is fair. It rests upon the fact that the cause of the delay is within the knowledge of the carrier and usually without that of the shipper. It is just that the carrier bear the burden of showing that it is not ascribable to negligence. We do not find that the precise question has been decided in this state. We have held, however, that the burden rests upon the carrier which has completed the transportation and whose liability is that of a warehouseman to show that a loss was not the result of its negligence. Rustad v. Great Northern Ry. Co., 122 Minn. 453, 142 N. W. 727. The principle is the same.

3. In proof of the usual and reasonable time required for transportation from Baker to Sandstone the plaintiff offered evidence of five other shipments which it made in October and November following the September shipment. The record does not show that it made shipments other than these. They were in close proximity in point of time to the one involved and nothing indicates that shipping conditions were more favorable. The record does not suggest that they were chosen because they were particularly fortunate ones. Two of them arrived in two days, two in three days and one in four days. This evidence was competent. No very serious objection can be made upon the ground that it involved the investigation of facts collateral to the issue. See State Elevator Co. v. Great Northern Ry. Co., 133 Minn. 295, 158 N. W....