Ritchie v. Oregon Short Line Railroad Co.

• Decision Date: 24 February 1926
• Citation: 42 Idaho 193,244 P. 580
• Parties: BEN T. RITCHIE, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

244 P. 580

42 Idaho 193

BEN T. RITCHIE, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

February 24, 1926

CARRIERS-STRIKES-CLAIM FOR NEGLIGENT LOSS-EVIDENCE OF OTHER SHIPMENTS-EVIDENCE OF REASONABLE TIME FOR SHIPMENT-EXPENSES INCURRED BY REASON OF DELAY-DUTY TO FURNISH STOCKYARDS - INSURER FOR SAFE DELIVERY - INSURER FOR DELIVERY WITHIN REASONABLE TIME-DETERMINATION OF REASONABLE TIME-DUE DILIGENCE - PASSIVE AND VIOLENT STRIKES - QUESTION FOR JURY.

1.In an action against a common carrier, under a bill of lading issued in accordance with chap. 176, 38 U.S. Stats. at L 1196, 1197, Comp. Stats., sec. 8604a, Fed. Stats. Ann., 2d ed., p. 506, if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damage in transit, by carelessness or negligence, no notice of claim or filing of a claim is required as a condition precedent to recovery.

2.Evidence of the customary time of shipments, from the point at which the shipment was made to its destination, is competent proof as to the reasonable time required for a shipment over such route; a witness may not ordinarily however, state what would be a reasonable time for transporting freight between said points.

3.If a shipment of livestock be delayed on account of the carrier's negligence, the carrier is liable for the additional expenses incurred by the shipper for feed for the livestock so delayed.

4.It is the duty of a carrier transporting livestock to furnish reasonable and proper facilities for feeding, watering and resting them.

5.A carrier is an insurer for the safe delivery of livestock, and is liable for every loss which cannot be attributed to the act of God, the public enemy, the act of the owner or the vicious propensities or inherent character of the animals themselves.

6.In the absence of a special contract, a carrier is an insurer for delivery only within a reasonable time.

7.What is a reasonable time for the delivery of goods must be determined by the circumstances of each particular case.

8.While, save for well-recognized exceptions, a carrier is an insurer of safety and the final delivery of goods committed to its charge for transportation, in respect to the time of delivery it stands on the same ground with other bailees, and is responsible only for the exercise of due diligence.Consequently, if by accident or misfortune not amounting to an inevitable casualty or the act of God the transportation of goods is retarded, the carrier will not be responsible for such delay, if it has used due care and reasonable diligence, and the goods are finally safely delivered.

9.Where employees suddenly abandon a carrier's service and, while offering no violence and causing no forcible obstruction to its business, simply refuse to work or further discharge their duties, for any delay in a shipment of livestock consequent thereon the carrier is liable, if it fails to use reasonable diligence in counteracting the effect of the strike; and whether the carrier has exercised such reasonable diligence is a question of fact.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County.Hon. Ralph W. Adair, Judge.

Action for damages resulting from delayed shipment of sheep.Judgment for plaintiff.Reversed and remanded.

Reversed and remanded with instructions.Costs awarded to appellant.

Geo. H. Smith, H. B. Thompson, John H. McEvers and John O. Moran, for Appellant.

The law infers that the carrier agrees to deliver within a reasonable time, and by "reasonable time" is meant the time reasonably required under all the circumstances attendant upon the movement of the particular shipment.(The Richland Queen, 254 F. 668, 166 C. C. A. 166;City of East Liverpool v. Pitt Construction Co.,285 F. 236;Pittsburgh, Cincinnati & St. L. R. Co. v. Hollowell,65 Ind. 188, 32 Am. Rep. 63, 66;Marshall v. McNear (D. C.),121 F. 428;In re 2098 Tons of Coal, 135 F. 317, 320;Young v. Maine Central R. Co.,113 Me. 113, 93 A. 449;Johnson v. New York, New Haven & H. R. Co.,111 Me. 263, 88 A. 988;Fiske Warren v. Portland Terminal Co.,121 Me. 157, 26 A. L. R. 304, 116 A. 411;Empire Trans. Co. v. Philadelphia & R. Coal & Iron Co.,77 F. 919, 23 C. C. A. 564, 35 L. R. A. 623;Gray v. Oregon Short Line R. Co.,32 Idaho 701, 187 P. 540.)

It is prejudicial error to permit plaintiff's witness over objection to testify as to what in his opinion would constitute a reasonable time to transport a shipment of sheep from Adrian, Oregon, to Idaho Falls; and where it is not shown that the witness in forming his opinion took into consideration all of the circumstances attendant upon the trip.(St. Louis, I. M. & S. Ry. Co. v. Hurst & Riley(Tex. Civ. App.),135 S.W. 599.)

It is prejudicial error to permit plaintiff's witnesses over objection to testify as to the time consumed in making a particular trip from Idaho Falls, Idaho, to Adrian, Oregon.( Atchison, T. & S. F. Ry. Co. v. Merchants Livestock Co.,273 F. 130, 134.)

A sudden and unexpected strike of the employees of the carrier, brought on without fault on the part of the carrier, and without warning, will excuse delay as a matter of law, where carrier has exercised reasonable diligence to secure new employees and to forward shipment.(Haas v. Kansas City, Fort S. & Gr. Co.,81 Ga. 792, 7 S.E. 629;The Richland Queen, 254 F. 668, 166 C. C. A. 166;Marshall v. McNear, supra;Fiske Warren v. Portland Terminal Co., 121 Me. 157, 21 A. L. R. 1483, 26 A. L. R. 304, 116 A. 411;4 R. C. L., pp. 743, 744, sec. 212.)

Even if it be conceded that a sudden strike, brought on without fault of the carrier, and where due diligence is used in endeavoring to overcome its effects, will not as a matter of law excuse delay, nevertheless evidence thereof is material and the jury should have been permitted to take the same into consideration in reaching a conclusion as to whether or not the delay was reasonable.(International & Great N. R. Co. v. Tisdale,74 Tex. 8, 11 S.W. 900, 4 L. R. A. 545.)

Where the shipper has entered into a stipulation in the contract of shipment, providing that unless notice of injury is filed within ninety days and a claim in writing filed within four months, and he has failed to serve such notice, or to file such claim, he may only recover for damages caused by the negligence of the carrier.(Hailey v. Oregon Short Line R. Co. (D. C.),253 F. 569;Barrett v. Van Pelt, 268 U.S. 85, 45 S.Ct. 437, 69 L.Ed. 857.)

Where the shipper agrees to feed the stock in transit, manifestly the carrier would be obliged to pay for the feed only in case of negligent delay.(34 Stat. L. 608;1 F. Stats. Ann. 386.)

Proof of delay is not proof of negligence.The plaintiff must prove that the delay was negligently caused, and this is especially true where he or his agents attended the shipment.The burden never shifts to the defendant to excuse the delay.( Hickey v. Chicago, B. & Q. R. Co.,174 Mo.App. 408, 160 S.W. 24;Ecton v. Chicago, B. & Q. R. Co., 125 Mo.App. 223, 102 S.W. 575.)

Where by contract the shipper agrees to load, unload, feed and care for sheep and to care for them during transportation, and the shipper is given the rate pursuant to regular tariff schedule, neither the carrier nor his agent may alter the contract and give shipper a preference rate, or extend a rebate or release shipper from his duty, and the admission of evidence of promise made by agent of the company to release the shipper from his responsibility and from the conditions of the contract is error.(Southern R. Co. v. Prescott,240 U.S. 632, 36 S.Ct. 469, 60 L.Ed. 836;New York Central & H. R. Co. v. York & Whitney,256 U.S. 406, 41 S.Ct. 509, 65 L.Ed. 1016;Chicago, B. & Q. R. Co. v. Merriam & Millard Co., 297 F. 1.)

It is the duty of the carrier transporting livestock to furnish reasonable and proper facilities for loading, unloading, feeding, watering and resting them at places along its line where the carrier can reasonably anticipate that the same will be needed, but he need not prepare for abnormal demands.It was error to instruct the jury that it was the carrier's duty to be prepared to meet all emergencies at all points on its line, and that this duty was absolute.( Lane v. Oregon Short Line R. Co.,34 Idaho 37, 198 P. 671;Casey v. St. Louis S.W. R. Co.,37 Tex. Cr. 49, 83 S.W. 20;Regan v. Adams Express Co.,49 La. 1579, 22 So. 837;4 Elliott on Railroads, p. 848, sec. 2345, and p. 854,sec. 2347.)

The court erred in failing to instruct the jury that under all of the evidence as introduced, the plaintiff's claim for injury to the sheep, alleged to have been caused while the same was retained in the stockyards at Pocatello, was barred by the stipulation in the contract limiting the time for filing of the notice of the injury and the time within which to file a claim in writing.(4 F. Stats. Ann., 2d ed., p. 507;Lissberger v. Bush Terminal R. Co.,119 Misc. 691, 197 N.Y.S. 283.)

O. A. Johannesen, for Respondent.

The loss and damages suffered by the respondent having been the result of appellant's negligence, or the negligence of its servants, it was not necessary for the respondent to file any claim for damages prior to filing suit, provided the suit was filed within the statutory period.(4 R. C. L. 991;Hailey v. Oregon Short Line R. Co.,253 F. 569, 572.)

The appellant having accepted respondent's sheep for shipment was under a legal duty to forward them with reasonable dispatch and diligence, and to complete the carriage within a reasonable time.If it failed in this duty, by reason of its own acts or acts of its employees, it was liable for damages proximately resulting from such failure.(Gray v. Oregon...