Rhymer v. Delaware, Lackawanna and Western Railroad Co.

• Decision Date: 14 March 1905
• Docket Number: 250-1903
• Citation: 27 Pa.Super. 345
• Parties: Rhymer v. Delaware, Lackawanna and Western Railroad Company, Appellant
• Court: Pennsylvania Superior Court

27 Pa.Super. 345

Rhymer v. Delaware, Lackawanna and Western Railroad Company, Appellant

No. 250-1903

Superior Court of Pennsylvania

March 14, 1905

Argued October 11, 1904

Appeal by defendant, from judgment of C.P. No. 2, Phila. Co.-1902 No. 3728, on verdict for plaintiff in case of James L. Rhymer v. Delaware, Lackawanna and Western Railroad Company.

Assumpsit against carrier to recover the value of a cargo of potatoes. Before Barratt, J.

The facts appear by the opinion of the Superior Court.

At the trial the court refused to admit evidence as to the value of the potatoes at Sherburne, New York, the place of shipment.

Plaintiff presented these points:

The burden is on the defendant to show that the damaged condition of the potatoes was not due to the negligence and carelessness of the defendant or its employees. Answer: That I affirm.

If the jury believes that the damaged condition of the potatoes was due to the negligence of the defendant or its employees, the verdict should be for the plaintiff. Answer: That I affirm.

Verdict and judgment for plaintiff for $ 310.96. Defendant appealed.

Errors assigned were ruling on evidence, quoting the bill of exceptions; above instructions, quoting them.

Affirmed.

James F. Campbell, for appellant, cited: Keller v. B. & O. R R. Co., 196 Pa. 57; Davenport Co. v. Penna. R. R Co., 173 Pa. 398; Buck v. Penna. R. R. Co., 150 Pa. 170; Penna. R. R. Co. v. Raiordon, 119 Pa. 577; R. R. Co. v. Reeves, 77 U.S. 176.

Charles J. Sharkey, with him F. Pierce Buckley, for appellee, cited: Needy v. Western Md. R. R. Co., 22 Pa.Super. 489; Ruppel v. Allegheny Valley Ry. Co., 167 Pa. 166; New York Cent., etc., R. R. Co. v. Eby, 22 W.N.C. 92.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

PORTER, J.

The plaintiff brought an action of assumpsit to recover the value of a car load of potatoes, which had been shipped over the line of the defendant company from Sherburne, New York, consigned to the plaintiff at Philadelphia, and which he declined to receive, upon its arrival, alleging that the goods were in a damaged condition. The bill of lading, issued by the defendant company, under which the property was shipped, stipulated that, as to each carrier over any portion of the route, the service to be performed under the contract should be subject to certain conditions, of which the following are material, viz: " No carrier or party in possession of all or any part of the property herein described, shall be liable for any loss thereof or damage thereto, by causes beyond its control; . . . . or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet, or decay; or from any cause if it be necessary or is usual to carry such property upon open cars." " Every carrier shall have the right in case of necessity, to forward said property by any railroad or route between the point of shipment and the point to which the rate is given." " No carrier shall be liable for loss or damages not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to the consignee." " The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a lower value is agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum price to govern such computation."

There seems to have been no contention between the parties in the court below as to the power of a connecting carrier to enter into a special contract under which his liability for loss or injury to the goods is to be determined, nor as to the lawful limits of that power. The parties tried the case upon the theory, and here agree, that under the special contract in this case the defendant is liable for loss or injury occurring through negligence, and from no other cause. The clause of the contract limiting the amount of the recovery to the value of the goods at the point of shipment is invalid as against a loss arising from the negligence of the carrier: Ruppel v. Allegheny Valley Railway Co., 167 Pa. 166. The right of the plaintiff to recover having been conceded to rest solely upon the ground of the negligence of the defendant, he was entitled to recover, if anything, the value of the goods at the place of delivery, and the first specification of error is dismissed.

The route of shipment was over the line of the defendant company to Phillipsburg, New Jersey; thence over the line of the Central Railroad Company of New Jersey to Bethlehem, Pennsylvania, and thence by the Philadelphia & Reading Railway Company to Philadelphia. The shipment was made from Sherburne on September 28, 1901, in D. L. & W. car No. 6456, and when the goods were tendered to the plaintiff in Philadelphia, on October 10, 1901, they were in D. L. & W. car No. 22804. The plaintiff offered in evidence the bill of lading issued by the defendant company, which acknowledged the receipt of the goods " in apparent good order; " and then produced testimony as to the condition of the goods at the time he declined to receive them from the carrier. The plaintiff testified, upon the latter point, that, " The potatoes were all thrown in promiscuously. As a general thing in loading cars they are more uniform, but these were all thrown up in great heaps. They were all cut up and bruised, and were in a deplorable condition in every way, showing evidence of very hard usage and that they had been misused." He also testified that the potatoes arrived in Philadelphia in a car different from that in which they had been loaded at Sherburne. Thomas W. Gray, to whom the potatoes were sold by the agent of the Philadelphia & Reading Railway Company, testified that the potatoes had been handled very roughly, " and they had been shoveled and cut up. There were stones, sticks, straw and everything else mixed all through the car, and they were not loaded like other cars that come in the yard. They were just in heaps and piles, just thrown in and they looked to me as if they had been walked all over, tramped over." The plaintiff relied entirely upon the bill of lading as evidence of the condition of the goods at the time of the shipment, and having produced the testimony above quoted as to the condition of the property at the time of its arrival in Philadelphia, and the value thereof at the place of destination, rested. The car had remained in the outer freight yard at Philadelphia for about eight days, and there was a conflict of evidence as to whether the Philadelphia & Reading Railway Company had notified the plaintiff of the arrival of the consignment, but there was no evidence that the delay worked any injury to the property, while it was established as an undisputed fact that the plaintiff had given to the railroad company a written order to hold all his goods at the outer station, during that period, until by him ordered to be brought into the city.

Had the case gone to the jury upon the testimony produced by the plaintiff alone, it would have been the duty of the court to instruct the jury as to the liability of the several carriers engaged in the various stages of the transportation: Camden & Amboy Railroad Co. v. Forsyth, 61 Pa. 81; Keller v. B. & O. Railroad Co., 174 Pa. 62, and 196 Pa. 57; but the question of the defendant's liability would still, under the evidence, have been for the jury: American Express Co. v. Second National Bank, 69 Pa. 394; New York Central, etc., Railroad Company v. Eby, 22 W.N.C. 92; 9 Sadler 375. The testimony produced by the defendant eliminated from the case all questions as to which, if any, of the several carriers was responsible for the damaged condition in which the potatoes arrived at their destination.

That testimony established the following facts: The car No. 6456 containing the potatoes, was transported by the defendant company to Phillipsburg, New Jersey, and, on the evening of September 30, tendered to the Central Railroad of New Jersey, and was by that company refused because it had a broken end-sill. The car was opened and the contents examined by Gaylord B. Sheldon, who at that time was the agent of the defendant company. He testified that he found the potatoes " very much bruised up, skinned, and more or less rotten, and I noticed some were cut more or less before the car was touched; " that he, acting for the defendant company, procured men and had the potatoes transferred from the car in which they were to the car No. 22804, potato shovels or scoops made of wire and a wheelbarrow being used for the purpose of making the transfer, and the car last mentioned was, on October 2, delivered to the Central Railroad of New Jersey. The witness was...