Porter Screen Manufacturing Company v. Central Vermont Railway Co.

• Decision Date: 02 October 1917
• Citation: 102 A. 44,92 Vt. 1
• Parties: PORTER SCREEN MANUFACTURING COMPANY v. CENTRAL VERMONT RAILWAY COMPANY
• Court: Vermont Supreme Court

102 A. 44

92 Vt. 1

PORTER SCREEN MANUFACTURING COMPANY v. CENTRAL VERMONT RAILWAY COMPANY

Supreme Court of Vermont

October 2, 1917

May Term, 1917.

CASE for negligence in failing to deliver a carload of screens that defendant had undertaken to transport as a common carrier. Plea, the general issue with notice. Trial by jury at the September Term, 1915, Chittenden County Court, Miles J., presiding. Verdict and judgment for plaintiff. Defendant excepted.

Judgment reversed and cause remanded.

John W. Redmond for defendant.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

WATSON

Although the trial of this case was by jury, the material facts were largely established by agreement of parties. As will be seen, there was really but one disputed primary question of fact submitted to the jury.

It appeared from the agreed facts that on March 24, 1913, the plaintiff, at Winooski, this State, loaded Grand Trunk car No. 9447 (hereinafter designated as "car 9447") with screen doors and window screens, valued at $ 824.13, and the car so loaded was then received by the Central Vermont Railway Company for transportation by it and connecting carriers to the Eastern District Terminal in Brooklyn in the State of New York, in accordance with the bill of lading delivered by the defendant to the plaintiff; that in the course of such transportation the car left Winooski on March 25, 1913, was hauled over the lines of the successive carriers to Troy, N.Y., where it arrived on March 27, and by the Delaware and Hudson Railroad was there delivered to its connecting carrier, the New York Central and Hudson River Railroad Company (called in this case the "N.Y C.") [92 Vt. 5] at 12:15 p. m. of that day, by which it was then and there accepted for transportation over its line to the place of destination; that after thus receiving the car, the latter carrier placed it in its freight yard at Adams Street station in Troy, on the track designated as track "No. 2, " on the blue print marked "plaintiff's Exhibit D," at a point about two hundred feet south of Adams Street. The exact time in the afternoon when this car was thus placed on track No. 2, is a little in doubt: some of the evidence tending to show it to have been between 12.30 and 1.00, and some, that it was between 1.30 and 2.00. It further appeared from the agreed facts that L. & N. car No. 94242, (hereinafter designated as "car 94242",) loaded at Chazy, N.Y., with unslaked lime, and destined for Worcester, Mass., was delivered by the Delaware and Hudson Railroad to the N.Y. C. at Troy, at 1.10 p. m., on March 26, 1913, and later in the same day it was placed by the latter company in its said yard on the track designated as "No. 3," on the blueprint, Exhibit D, this track being the next parallel track west of No. 2, mentioned above. When car 9447 was placed on the latter track, it stood opposite the car of lime, and, taking into account the overhang, the two cars were about three feet apart, thus remaining until they were destroyed by fire as stated below. The elevation of top of rail of track No. 3, where the car of lime stood, is 21.62 feet above sea level, and top of rail of track No. 2, where the other car stood, is 21.73 feet above sea level. The rails are five inches high, and the floor of a freight car is substantially four feet above top of rails. The yard is somewhat descending from the place of these cars west toward the river. East and south from the same place, it is more or less ascending.

It appeared from the evidence that the waters of the Hudson River above Troy rose to a great height, creating an unprecedented flood at the latter place, and overflowing Adams Street yard to such a depth that they entered the said carload of lime, slaked the lime, thereby causing heat which set fire to the car. This fire was communicated to car 9447, destroying it and all its contents. The evidence showed that the flood there (being one free from ice) was unparallel in history, and beyond question of such magnitude as to be an act of God, within the meaning of that term; yet the plaintiff contended that the defendant was not entitled to the benefit of immunity from responsibility as is usual in cases coming under the term "act of God," for the reason that the evidence showed negligence on the part of the N.Y. C., in not exercising the requisite degree of care and diligence to protect the plaintiff's property from such destruction, after the railroad company foresaw or, in the exercise of due care, should have foreseen, with reasonable probability, the happening of such high water as was likely to subject it to extraordinary dangers, as the car was located with reference to the car loaded with unslaked lime. On the other hand, the defendant claimed that, by the tendency of the evidence, the proximate cause of the destruction of the property was the unprecedented flood, without any contributing negligence on the part of the carrier. It was agreed by the parties that in all respects the relationship between defendant and the N.Y. C. was such that under the federal statute known as the "Act to Regulate Commerce" (Act Cong. Feb. 4, 1887, C. 104, 24 Stat. 379), and the amendments thereto, the former, as the initial carrier is liable to the plaintiff for any damage to the shipment mentioned, proximately caused by the negligence of latter, as connecting carrier. The bill of lading, section 1, states that the carrier or party in possession of the property therein described shall be liable for any loss thereof or damage thereto, except that no carrier or party in possession "shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy," etc.

At the close of the evidence, the defendant moved for a directed verdict, assigning as grounds therefor (stated in condensed and comprehensive from) that on all the evidence (1) the plaintiff is not entitled to recover; (2) the sole proximate cause of the destruction of the property in question was an act of God; (3) no negligence on the part of either the defendant or the N.Y. C., concurred with the act of God as a proximate cause of the destruction of such property. The motion was overruled, and exception saved.

The first ground of the motion fails to point out any precise basis upon which it is predicated, and is therefore too general for consideration. Castonguay v. Grand Trunk Ry., 91 Vt. 371, 100 A. 908. The other two grounds are considered together.

At the time in question, Leland Wadsworth was freight agent for the N.Y. C. at Troy, having general supervision of the freight traffic, including the freight yard of the company at that place, and including also the movement of trains in the yard. He resided at Troy. At that time, Charles A. Lloyd was day yard-master of the Adams Street yard, had charge of the yard, and direct charge and control of the movement of trains in and out and about the yard, under the supervision of the freight agent. At the same time, Patrick J. McCormick was night yard-master, his duties at night and his authority being similar to those of Lloyd in the day time. The yard-master knows where every car is located in the yard. There was a "running slip" accompanying car 94242, showing the car number, initial, destination, contents, and consignee, which paper came into the freight agent's office in Troy, in the usual way, intended to convey to such agent the information specified on it, about noon of March 26th. Indeed, in connection with the plaintiff's introduction of evidence showing this, counsel for defendant conceded that there was no question about the facts of this matter; that the N.Y. C. knew it had a carload of lime on that day. Knowing this, and further knowing what car it was, and where it was located on track No. 3, the railroad company knew that this car was still at the same place the next day, when car 9447 was received and placed directly opposite on track No. 2, so that the two cars were within 3 feet of each other.

The American Railway Association Rules and the Interstate Commerce Commission Regulations for the Transportation of Dangerous Articles other than Explosives, before and at the time in question, state that: "Carload lots of crude camphor, cotton, * * * * or other articles liable to be ignited by sparks, as well as unslaked lime and calcium carbide, both of which must be protected from water, should, when practicable, be loaded in tight cars, with doors stripped, and, when practicable, these cars must not be placed next to cars placarded EXPLOSIVES."'

The freight agent testified to receiving a copy of the rules and regulations mentioned, and to knowing about the foregoing rule; but that he did not know that if water entered the carload of lime and slaked the lime, it would set fire to the car; that a set of those regulations was also transmitted to the yard-masters, and that schools were held for the instruction of them and their crews in the prudent handling of explosives and other dangerous matters; that the rule did not convey to him the idea that the writer of it meant that lime, when slaking, was likely to burn a car; but conveyed to his mind only the idea that if the lime became wet it would be spoiled. This rule was received in evidence subject to defendant's exception on the ground of immateriality. But we think it cannot be said to be immaterial. The rule is to be understood in the light of common knowledge that unslaked lime is slaked by the action of water upon it and if the quantity be large, much heat is produced and perhaps fire. Considering the classification made (in the rule) for transportation purposes, the imperative direction to protect unslaked lime from water, and the provision, applicable alike to...