Sanders v. Charleston & W.C. Ry. Co.

• Decision Date: 12 November 1928
• Docket Number: 12521.
• Citation: 145 S.E. 400,147 S.C. 487
• Parties: SANDERS v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

145 S.E. 400

147 S.C. 487

SANDERS v. CHARLESTON & W. C. RY. CO.

No. 12521.

Supreme Court of South Carolina

November 12, 1928

Appeal from Common Pleas Circuit Court of Beaufort County; M. L Bonham, Judge.

Action by Mrs. B. G. Sanders against the Charleston & Western Carolina Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

F. B Grier and M. G. McDonald, both of Greenwood, and W. J Thomas, of Beaufort, for appellant.

Claude M. Aman, of Beaufort, and Alfred Wallace, of Columbia, for respondent.

STABLER J.

This is the second appeal in this case. The first was taken by the plaintiff from an order of the trial judge directing a verdict for the defendant; the decision of the court reversing the judgment below being reported in 143 S.C. 395, 141 S.E. 607.

The action was brought against the defendant, as the initial carrier for the recovery of damages resulting from an alleged negligently delayed shipment of a carload of tomatoes. The following are the material allegations of the complaint:

"That on the 12th day of July, A. D. 1924, the plaintiff delivered to the defendant company on its tracks at Port Royal, S. C., six hundred and eighty [680] crates of tomatoes, the same being a perishable commodity, for transportation of plaintiff's agent, Olivit Bros., Incorporated, at New York City, in the State of New York, to be sold on commission for the account of the plaintiff, and that the defendant issued its bill of lading for the same.

That at the time the said tomatoes were delivered to the defendant company, they were in good condition and properly packed and of the very best quality, and, being a perishable commodity or property, they were accepted for shipment at a higher rate and classification under the vegetable tariff than is charged by the plaintiff for transporting goods of a non-perishable nature. That, by reason of their perishable nature and higher freight charges made by the defendant, the plaintiff was entitled to prompt and expeditious handling and transportation to the point of destination, and prompt delivery of the said shipment to plaintiff's consignee.

That on account of the usual schedule of the defendant company from Port Royal, S. C., to New York City, the said shipment should have been delivered to plaintiff's consignee on the 14th day of July, A. D. 1924, in time for the early morning market, at which time the market price for tomatoes of the kind and quality which constituted this shipment of 680 crates of tomatoes was three thousand four hundred and no/100 ($3,400.00) dollars. The defendant, however, negligently, carelessly, and in utter disregard of its duty to the plaintiff, failed and neglected to deliver the said shipment until the 17th day of July, A. D. 1924, at which time they were pricked, rotted, heated, nested, and in such a damaged condition, and in addition thereto, the market price had declined so that they sold for the sum of one thousand, two hundred, ninety-seven and 50/100 ($1,297.50) dollars. That, if the said shipment of tomatoes had arrived and been delivered to the plaintiff's consignee in time for the early morning market of July 14th they would have sold for the sum of three thousand, four hundred and no/100 ($3,400.00) dollars, whereas, as a matter of fact, is consequence of the careless, negligent acts of the defendant, as above set forth, the said shipment of tomatoes only brought the sum of one thousand, two hundred, ninety-seven and 50/100 ($1,297.50) dollars, to the damage of this plaintiff in the sum of two thousand, two hundred, two and 50/100 ($2,202.50) dollars, together with interest thereon from the 14th day of July, A. D. 1924, at the rate of seven per cent. per annum. Plaintiff alleges that she has paid the sum of $346.80 freight upon the above shipment."

The defendant, answering, denied any unreasonable or negligent delay in the shipment, and alleged by way of affirmative defense:

"(a) That heretofore on or about the 12th day of July, 1924, defendant received from plaintiff a shipment of tomatoes in barrels at Port Royal, S. C., consigned to Olivit Bros., destination New York, and thereupon issued its bill of lading therefor, which constitutes and is a written contract between the parties plaintiff and defendant and connecting lines en route to destination in this behalf.

(b) That, in and by the provisions of the said bill of lading Section 2 (a), it is, among other things, provided: 'No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market, or otherwise than with reasonable dispatch.' That defendant and its connecting lines over which the shipment moved to destination fully kept and performed in every particular the terms and conditions of the said written contract of shipment.

(c) That this shipment in order to reach its destination by the shortest and most available route, had to move and did move over the line of this defendant to Yemassee, S. C., where it was delivered to the Atlantic Coast Line; thence over the rails of the Atlantic Coast Line to Richmond, Va., where it was delivered to the R. F. & P.; thence over the rails of the R. F. & P., to Potomac Yards, Va., where it was delivered to the Pennsylvania Railroad, and thence over the rails of the Pennsylvania Railroad to destination. That on this movement defendant's line does not extend beyond Yemassee, S.C. That this defendant promptly and with great dispatch transported and delivered without loss, injury, or damage the said shipment to its connecting line at Yemassee. That the aforesaid connecting carriers promptly and with great dispatch transported to destination and delivered the said shipment without loss, injury, or damage.

(d) That delivery at New York on the fourth morning after receipt of a shipment at Port Royal, S. C., is the quickest possible time that can be made under the fastest schedule now obtaining and at the times mentioned in the complaint hereon. That in the ordinary and reasonable course of transportation a much longer time is ordinarily required in the reasonably prompt and careful handling of a shipment from Port Royal, S. C., to New York City, the destination, to with, five days, and sometimes as much as six days."

The case was tried before his honor, Judge Bonham, at the March, 1928, term of the court of common pleas for Beaufort, county. The court overruled the defendant's motion for a directed verdict and submitted the issues of negligence and damage to the jury, who found for the plaintiff in the sum of $700.

The defendant appeals and makes the court's refusal to direct a verdict the basis of assignment of error. Counsel for the appellants state and argue, upon the exceptions, two propositions: (1) That, in determining whether a case arising under the Carmack Amendment should be submitted to the jury, the court must be governed by the federal rule requiring substantial evidence of negligence and not by the state rule under which a mere scintilla of evidence, is sufficient; and (2) that there was no substantial evidence of negligence in the case.

The following from the court's decision in the first appeal is here quoted as stating correct, applicable legal principles. The court said:

"The principle is well established in this State that on motion for a directed verdict the evidence must be considered most favorably to the opponent of the motion. Crews v Sweet, 125 S.C. 303, 118 S.E. 613, 29 A. L. R. 43; Wilson v. Railway Co., 134 S.C. 31, 131 S.E. 777; Anderson v. Hampton, 134 S.C. 185, 132 S.E. 47; Brogdon v. Northwestern R. Co. of South Carolina, 141 S.C. 239, 139 S.E. 459.

In an action for damages for negligent delay in transportation of a perishable vegetable, the plaintiff is required to show negligence arising out of an unreasonable delay, and also that such negligence was the proximate cause of the damage. Van Epps et al. v. A. C. L. Ry. Co., 105 S.C. 406, 89 S.E. 1035. But negligence may be inferred from circumstances. It was held in Hudson v. Railway, 123 S.C. 488, 124 S.E. 584:

'Some act of negligence as alleged must be proven, but this negligence may be shown by a number of facts and circumstances, which taken

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