Nw. Marble & Tile Co. v. Williams

• Decision Date: 05 March 1915
• Docket Number: No. 19013[157].,19013[157].
• Citation: 151 N.W. 419,128 Minn. 514
• Court: Minnesota Supreme Court
• Parties: NORTHWESTERN MARBLE & TILE CO. v. WILLIAMS.

128 Minn. 514

151 N.W. 419

NORTHWESTERN MARBLE & TILE CO.

v.WILLIAMS.

No. 19013[157].

Supreme Court of Minnesota.

March 5, 1915.

Appeal from District Court, Rice County; Arthur B. Childress, Judge.

Action by the Northwestern Marble & Tile Company against Joseph Williams, sole trader, etc. Verdict for defendant. From denial of motion for judgment notwithstanding the verdict, plaintiff appeals. Affirmed.

Syllabus by the Court

If, after verdict, the unsuccessful party moves for judgment notwithstanding the verdict, but does not move in the alternative for a new trial, he cannot on appeal be awarded a new trial. By resting solely upon his motion for judgment, he waives all errors which would be ground only for a new trial.

A common carrier is, at common law, an insurer of the goods shipped, and is responsible for all losses, except those arising from certain excepted causes. One excepted cause is improper packing by the shipper. The rules applicable to contributory negligence do not apply to such a case. The carrier must, to relieve himself from liability, show that the fault of the shipper was the sole cause of the loss.

If improper packing is apparent to the carrier or his servants, then the carrier may refuse to receive the shipment. If he does receive the shipment, he assumes to carry the goods as they are, and the full common-law liability as carrier attaches.

Although the carrier has knowledge of the defective packing, yet if it is not apparent to the ordinary observation of the carrier or his servants that the goods cannot be safely carried in the condition in which they are presented, the carrier should not be held to take the chances of injury from improper packing. On this point the evidence in this case presents a question for the jury. Walter W. Todd, of Minneapolis, for appellant.

James P. McMahon, of Faribault, for respondent.

HALLAM, J.

Plaintiff, a dealer in marble in Minneapolis, shipped a number of marble slabs by rail to the state school for the feebleminded at Faribault. Defendant is in the transfer business at Faribault. He was engaged to haul the marble from the railway station at Faribault to its destination. The marble was packed in crates, and on the way some of the crates fell from the wagon and several slabs were broken. Plaintiff sued for damages. The jury found for defendant. Plaintiff moved for judgment notwithstanding the verdict, but did not ask for a new trial, and the court denied the motion. This appeal involves only the question of the correctness of this ruling.

[1] 1. Plaintiff assigns as error certain rulings of the court in the admission of evidence and in the charge to the jury. If plaintiff were asking for a new trial, it would be proper to consider these assignments of error; but they are quite immaterial on this appeal. A party against whom a verdict has been returned may move in the alternative for a new trial or for judgment notwithstanding the verdict. G. S. 1913, § 7998. When he moves only for judgment, and rests upon that motion alone, he cannot on appeal be awarded a new trial. He has waived all errors which would be ground only for a new trial. Bragg v. Chicago, M. & St. P. Ry. Co., 81 Minn. 130, 83 N. W. 511;Krumdick v. C. & N. W. Ry. Co., 90 Minn. 260, 95 N. W. 1122;Sallden v. City of Little Falls, 102 Minn. 358, 113 N. W. 884,13 L. R. A. (N. S.) 790, 120 Am. St. Rep. 635;Helmer v. Shevlin-Mathieu Lbr. Co., 151 N. W. 421, filed herewith. Errors in the admission of evidence or in the charge to the jury are of this sort. They present no ground for judgment notwithstanding the verdict. Final judgment cannot be given to the defeated party because the cause was erroneously tried. Such party may, if he asks for it, be entitled to a new trial on this ground, but never to final judgment. The question before us is, not whether the case was properly tried, but whether there is any competent evidence reasonably tending to sustain the verdict. If so, the verdict must be sustained. In determining that question, every intendment will be indulged in favor of the verdict, and judgment will only be granted when the evidence is conclusive against the verdict. Cruikshank v. St. Paul Fire & Marine Ins. Co., 75 Minn. 266, 77 N. W. 958;Fohl v. C. & N. W. Ry. Co., 84 Minn. 314, 87 N. W. 919;Marengo v. Great Northern Ry. Co., 84 Minn. 397, 87 N. W. 1117,87 Am. St. Rep. 369;Fischer v. Sperl, 94 Minn. 421, 103 N. W. 502;Stebbins v. Martin, 121 Minn. 154, 140 N. W. 1029.

[2] 2. We address ourselves, therefore, to this question of the sufficiency of the evidence to sustain the verdict. Defendant was admittedly a common carrier of goods. A common carrier of goods in general insures the safe transportation of goods committed to him for that purpose, and he is responsible for all damage to the same while in transit, unless such damage is occasioned by certain excepted causes. These excepted causes are act of God, act of public enemy, the inherent quality or ‘proper vice’ of the articles themselves, or some act or omission of the shipper or owner. Christenson v. American Express Co., 15 Minn. 270 (Gil. 208), 2 Am. Rep. 122;Goodman v. O. R. & N. Co., 22 Or. 14, 28 Pac. 894.

Defendant contends that this case comes within the last exception; that is, the contention is that the marble slabs were not properly packed or crated by the shipper, that when they were transferred to wagons they were loaded in the proper and practicable way and were braced in the usual and proper way by means of boards running from the top of the crates to the bottom of the wagon bed, but that they fell by reason of the fact that the crating was worm-eaten, dozy, and decayed, so that it would not properly hold the nails driven into it for that purpose.

The general rule is that, where the shipper packs articles for shipment, he cannot recover from the carrier for injuries due to improper packing. Hutchinson, Carriers, § 233; Shriver v. S. C. & St. P. R. Co., 24 Minn. 506, 31 Am. Rep. 353. Some authorities apply here the rules of contributory negligence, and hold that if the bad packing contributes in any measure to the loss or injury the carrier is not liable. 5 Thompson, Negligence, § 6465. See Reed & Walker v. P., W. & B. R. R. Co., 3 Houst. (Del.) 176, 212; Ross v. Troy & Boston R. Co., 49 Vt. 364, 24 Am. Rep. 144. It appears to us that the rules of contributory negligence have no application to such a case. Contributory negligence of plaintiff is a defense only in cases where the action is founded on negligence of defendant. Here the action is not founded on negligence of the carrier at all. The...