Richards v. New York, N.H. & H.R. Co.

• Decision Date: 02 January 1952
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: RICHARDS v. NEW YORK, NEW HAVEN & HARTFORD R. CO.

Page 769

102 N.E.2d 769

328 Mass. 204

RICHARDS v. NEW YORK, NEW HAVEN & HARTFORD R. CO.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 22, 1951.

Decided Jan. 2, 1952.

J. F. Henry, Boston, H. F. Wood, Boston, for plaintiff.

P. F. Perkins, Boston, for defendant.

Before QUA, C. J., and LUMMUS, WILLKINS, WILLIAMS and COUNIHAN, JJ.

LUMMUS, Justice.

There was evidence for the plaintiff of the following facts. In October, 1945, he bought 2,200 live geese in Prince Edward Island, Canada, which were shipped to Mansfield, Massachusetts, in two livestock cars, with straw bedding and ninety bushels of potatoes in each car. The geese were dry and in good condition when shipped early in the morning of Monday, October 15. The geese arrived at Mansfield in the afternoon of Saturday, October 20, over the defendant railroad. When the cars arrived water was running freely from them. The geese were very wet, and the plaintiff thought they had been wet within two or three hours. The dead ones numbered 141, and the living ones were very weak, and when the plaintiff got them to his farm 110 more died. The potatoes would provide sufficient water for the geese on the trip, and in fact almost all the potatoes had been eaten on the trip. The bill of lading warned the carrier not to 'feed or water on route' and not to 'turn water hose on birds.' The two cars arrived in Boston before 9 A.M. on October 20, and left Boston at 1:15 P.M.

The plaintiff's declaration was in two counts, both alleged to be for the same cause of action. The first count alleged unreasonable delay as the cause of the loss. The second count also alleged unreasonable delay by the defendant 'or the initial or connecting common carrier.' The plaintiff waived the first count and 'so much of the second count as claimed delay,' and said that he based his claim solely on the negligence of the defendant 'in the transportation of these geese from Boston to Mansfield.'

The judge denied a motion for a directed verdict in favor of the defendant, and the defendant excepted. The motion was based on the ground that there 'is no evidence of delay, negligent or otherwise, in transportation on the defendant's line of railroad, taking the case in the light of the plaintiff's allegation that the defendant accepted the shipment and delayed it.' Upon a motion in that form we think that the variance between the declaration and the evidence was open to the defendant under its exception to the denial of its...