Norris v. Savannah, F. & W. Ry. Co.

• Decision Date: 01 March 1887
• Citation: 23 Fla. 182,1 So. 475
• Parties: NORRIS v. SAVANNAH, F. & W. RY. CO.
• Court: Florida Supreme Court

1 So. 475

23 Fla. 182

NORRIS v. SAVANNAH, F. & W. RY. CO.

Florida Supreme Court

March 1, 1887

Appeal from Duval county, Fourth judicial circuit.

Syllabus by the Court

SYLLABUS

Where the transportation of freight, perishable in its nature, is interrupted and delayed by a flood in a river which the track of the railroad crosses, and the freight decays, and there is no negligence on the part of the common carrier in taking care of the freight or otherwise, the loss is attributable to the flood as an act of God, and the carrier is not liable.

That a similar flood had occurred once in each of the two preceding years, but the carrier had not, by changing the construction of its road, or providing other means of crossing the river avoided the detention, does not render him liable; such floods being up to the time of the trial of the cause otherwise unprecedented.

The mere failure to notify the consignor or consignee of the detention, held not to render the carrier liable; the freight being promptly delivered as soon as the subsidence of the waters rendered a continuance of the transportation and a delivery possible, and no negligence in taking care of the freight appearing, and there being no evidence to show that the damage sustained would have been diminished, or to what extent, if such notice had been given.

COUNSEL

C. P. & J. C. Cooper, for appellant.

Fleming & Daniel, for appellee.

OPINION

RANEY, J.

The appellant, who was plaintiff in the circuit court, delivered to the appellee, at Jacksonville, in this state, February 2 1884, 301 boxes of oranges, destined for Cincinnati, Ohio and consigned to the Grange Supply Company. The oranges did not reach Cincinnati till the fifteenth day of the month, on which day, or on it and the next day, they were delivered to the consignee, but in a condition of such decay that only about 80 boxes could be used or sold. The appellant sued the railroad company, and there was a trial by jury resulting in a verdict and judgment for the latter.

The only question we shall consider is whether the loss sustained by the appellant is attributable to the act of God. The defendant company's section of the railroad route over which the oranges were transported extends from Jacksonville Florida, to Jessup, in Georgia, where it connects with the road of the East Tennessee, Virginia & Georgia Railroad Company, extending to Chattanooga, Tennessee, from which point the road operated by the Cincinnati, New Orleans &amp Texas Pacific Railway Company completes the route to Cincinnati. The oranges reached Jessup between 2 and 3 o'clock A. M. of February 3, where they were delivered to the East Tennessee, Virginia & Georgia Company at about 3 o'clock, and they left there the same morning about 7 o'clock by passenger train for Chattanooga, where they were received on the fifth of the month by the Cincinnati, New Orleans & Texas Pacific Company. They reached Ludlow, a station on the latter road, one mile south from Cincinnati, and 335 miles north from Chattanooga, on the next day, but the precise time of the day cannot, the record states, be given, because of the loss or destruction of the railroad company's records. They did not reach Cincinnati, however, until the 15th day of the month. They were shipped at Jacksonville in a through car for Cincinnati, which car was billed as such, and 'sealed with Jacksonville seals,' and in this car they remained till taken from it for delivery to the consignees in Cincinnati, it not having been opened until about the time of such delivery. The route the oranges were transported over was the most direct railway route between Jacksonville and Cincinnati, and the time usually taken in transporting a through car over it is 'four or five days,' or 'about five days,' and from Chattanooga to Cincinnati the time is from 22 to 24 hours. There was no unusual delay, but the car came through on time until it reached Ludlow, where it reremained from the sixth to the fifteenth of February.

This detention at Ludlow was occasioned by a flood in the Ohio river, which obstructed entrance into Cincinnati, and, early in the morning of February 6th, washed out and destroyed a large portion of the Cincinnati end of the railroad bridge over the river, on the trestle at such end, it being under from 8 to 20 feet of water, and prevented any repair of it until the 24th day of the month, when business was resumed over the bridge. This break could not be repaired so that engines could pass over it till the 24th. The water rose to an unprecedented height, so high as to stop all transit of trains, it rising over 74 feet, and not subsiding, till the 24th, so that the passage of trains could be resumed. Trains can be run if the water does not rise higher than 53 feet. The flood was the highest ever known, was very destructive to property, and completely obstructed all access to the city by rail from the south, and from the north except by one small narrow-gauge road. It submerged a large portion of the business part of the city, through which the railroads run including the road of the Cincinnati, New Orleans & Texas Pacific Company. The Ohio river has never risen so as to obstruct travel over the Cincinnati, New Orleans & Texas Pacific Company's bridge except two or three times,--once, it may be, in 1882, once in 1883, and in the instance stated, in 1884, the rise in each succeeding year being higher than before. The bridge is...