Saliba v. N.Y. Cent. R. Co.
| Decision Date | 08 January 1929 |
| Citation | 144 A. 194 |
| Parties | SALIBA v. NEW YORK CENT. R. CO. |
| Court | Vermont Supreme Court |
Exceptions from Washington County Court; Frank D. Thompson, Judge.
Action by Sarkis Saliba against New York Central Railroad Company. Verdict for plaintiff, and defendant brings exceptions. Judgment affirmed.
Argued before WATSON, C. J., and POWERS, SLACK, MOULTON, and CHASE, JJ.
Dean C. Davis and John W. Gordon, both of Barre, for plaintiff.
H. C. Shurtleff, of Montpelier, for defendant.
This case has been here once before, when we upheld the declaration as against a demurrer, 101 Vt. 56, 140 A. 491. The plaintiff seeks to recover for damages sustained by a carload of bananas, from New York City, consigned to him at Barre, caused, as he claims, by an unreasonable delay in transit. Trial by jury was had, with verdict for the plaintiff. The defendant has excepted.
The shipment left New York City on Jannary 19, 1927, at 5:15 p. m. It reached Mechanicsville, N. Y., on January 20, at 4:50 p. m., left Mechanicsville at 10:20 p. m., and arrived at North Adams, Mass., at 6:30 a. m. on January 21. At this point the crew of the train "tied up," since they had worked the maximum time and could go no farther under the Federal Hours of Service Act (45 USCA §§ 61-66). A relief crew was sent out from East Deerfield, Mass., and the train containing the shipment left at 11:20 a. m., arriving at East Deerfleld at 1:45 p. m. Here the car remained until 9 or 10 p. m., when it left for Woodsville, N. H., on the first regular train. It arrived at Barre about 9 p. m. January 23, and was delivered to the plaintiff on January 24 between 10 a. m. and noon. The evidence of the plaintiff tended to show that if it had not been for the delay at North Adams, the car would have reached East Deerfield in time to proceed to Woodsville (the next junction point) as a part of a train leaving East Deerfield at about 9 a. m. on January 21, and, in such case, would have reached Barre at noon on January 22. The evidence of the plaintiff tended also to show that the usual time consumed by other shipments of bananas between New York City and Barre over the same route as the one in question was three days.
The shipper prepared the car and loaded the bananas. Before the bananas were placed in it the car was inspected by an agent of the shipper, and lined with two or more thicknesses of builder's paper. It was heated by the use of portable oil heaters until the inside temperature was 74 degrees Fahrenheit. The heaters were then removed and the bananas placed on board. As they were loaded, they were inspected and found to be in good, green condition. The temperature of the car was determined upon consideration of the condition of the fruit, and the then temperature, the weather at the time of loading, and the weather through which the car was expected to run.
When the car reached Mechanicsville another agent (termed a "messenger") of the shipper took charge of it. He inspected the car and its contents, and found the inside temperature to be 62. The bananas were green; none were turning color at that time. No further heat was introduced. The messenger accompanied the train from Mechanicsville to East Deerfield, at which point he again inspected the car and its contents, and found the inside temperature to be 62 and about ten bunches of the bananas "showing color," that is, beginning to show a yellow tint, which was not, however, ripening so as to injure the fruit. The temperature outside the car, both at Mechanicsville and East Deerfield, was 36. With the fruit in its then condition, and the temperature of the car as it was, the shipment could be carried in a closed car, such as it was in, for 36 hours without generating heat and ripening itself, and the messenger allowed that period of time before the fruit would spoil. When the car was delivered to the plaintiff at Barre, more than 36 hours after its departure from East Deerfield, the temperature of the car was 66, and the bananas were dead ripe, and for the most part unmerchantable.
When the car was inspected at Barre, a charcoal stove, containing fire, was found in one of the end refrigerator compartments. No explanation was given as to how or when it came there. The agents of the shipper, who had to do with the preparation and inspection of the car before and during transit, testified that they did not install it. No evidence upon the subject was adduced by the defendant. The bill of lading contained this clause:. "Ventilation not to be changed except on specific instructions from shipper, owner or messenger in charge." But the compartment containing the stove was separated from that containing the fruit, and the partition between was covered by three layers of heavy paper, and the testimony of the shipper's messenger was that the heat could not penetrate "except in just the ordinary filtration through paper, which would be very, very slow."
The claimed delay took place beyond the line of the defendant, which was the initial carrier, but no question is raised, or can be raised, as to the liability of the defendant for loss caused by the fault of its connecting carrier, which it is deemed to have adopted as its agent; this being an interstate shipment to which the act of Congress known as the Carmack Amendment of the Hepburn Act (49 USCA § 20 (11, 12) applies. Haglin-Stahr Co. v. M. & W. R. R. Co., 92 Vt 258, 262, 263, 102 A. 940; N. Y. P. & N. R. Co. v. Peninsula Produce Exchange, 240 U. S. 34, 36-40, 36 S. Ct. 230, 60 L. Ed. 511, 514, 515, L. R. A. 1917A, 193; Baltimore C. & A. Co. v. William Sperber & Co., 117 Md. 595, 84 A. 72, 73.
We do not consider the defendant's exceptions in the order in which they have been briefed. The messenger in charge of the car was asked on direct examination: "What is the usual running time between Mechanicsville and East Deerfleld?" The defendant's counsel objected, and, the question being permitted, was allowed an exception. No ground of objection or exception was stated, and so the question is not for consideration. Morgan v. Gould, 96 Vt. 275, 279, 119 A. 517; Eastern States, etc., League v. Estate of Vail, 97 Vt. 495, 514, 124 A. 568, 38 A. L. R. 845; Robinson v. Leonard, 100 Vt. 1, 134 A. 706. However, the evidence was clearly admissible. Newell et al. v. Smith, 49 Vt. 255, 265, 266; Stevens v. R. R. Co., 129 Md. 215, 98 A. 551, 553; American Ry. Ex. Co. v. Peninsula Produce Exchange, 142 Md. 422, 121 A. 240, 241, 242; Ritchie v. Oregon Short Line R. R. Co., 42 Idaho, 193, 244 P. 580, 45 A. L. R. 909, 915.
After the messenger of the shipper had testified that he allowed 36 hours for the shipment to keep without ripening after leaving East Deerfield, he was asked on cross examination: "And if it should turn out that they arrived at Woodsville and held over there on Sunday, you knew that couldn't be done, didn't you?"
The question was excluded as a matter of discretion, and the following question was put to the witness: "If you had known that this car was to reach Barre on Sunday night what different would you have done than what you did do?"
This was also excluded. An exception was taken to each ruling, the ground being that the court was limiting the cross-examination. The scope and extent of the cross-examination is a matter within the sound discretion of the trial court, and, in the absence of an abuse thereof, the ruling is not revisable here. Shores v. Simanton, 99 Vt. 191, 195, 196. 130 A. 697; State v. Long, 95 Vt. 485, 491, 115 A. 734; Miller v. Pearce, 86 Vt. 322, 324, 85 A. 620, 43 L. R. A. (N. S.) 332. As to the first question, the court expressly ruled as a matter of discretion; as to the second, we will presume, since nothing appears to the contrary, that it so ruled. Murray v. Nelson, 97 Vt. 101, 111, 122 A. 519; Parkhurst v. Healy's Estate, 97 Vt. 295, 296, 122 A. 895; Capital Garage Co. v. Powell, 98 Vt. 303, 312, 127 A. 375; State v. Fairbanks, 101 Vt. 30, 34, 139 A. 918. Abuse of discretion does not appear, and the exceptions are unavailing.
The same witness was asked on direct examination, subject to exception on the ground of immateriality, what was the schedule time of the train in question at North Adams, on January 21, 1927. He answered that there was no shedule time at that place. He later testified, without objection, that the schedule time at East Deerfield was between 8 and 9 o'clock in the morning. No prejudicial error appears.
At the close of all the evidence, the defendant moved for a directed verdict, which motion was overruled and an exception taken. The first ground of the motion was that the evidence, taken in its most favorable light for the plaintiff, made out no cause of action against the defendant. This fails to point out any precise basis upon which it is predicated, and is therefore too general for consideration. Porter Screen Mfg. Co. v. C. V. Ry. Co., 92 Vt. 1, 6, 102 A. 44.
The other grounds, briefly stated, are: (1) Because there was no such delay shown as would warrant recovery, the time taken for the shipment to move, with nothing more, being no basis for recovery; (2) because the damage was due to the inherent nature of the fruit, and therefore the defendant would be liable only in case of negligence, of which there was no evidence; (3) because the shipper undertook to care for the fruit, and by a clause in the bill of lading the carrier is not responsible for the fault or neglect of the shipper.
A carrier is not an insurer against delay; reasonable diligence to prevent it is all that is required. Warren v. Portland Terminal Co., 121 Me. 157, 116 A. 411, 412, 26 A. L. R. 304; New England Fruit Co. v. Hines, 97 Conn. 227, 116 A. 243, 245; Atlantic Fruit Co. v. Penn. R. R. Co., 149 Md. 1, 130 A. 63, 65. What is reasonable diligence is to be decided in view of the circumstances, and one of the circumstances is the perishable nature of the freight carried. Smith et al. v. Bangor & A. R....
To continue reading
Request your trial