Sarkis Saliba v. New York Central Railroad Co.

Decision Date08 January 1929
CourtVermont Supreme Court

November Term, 1928.

Carriers---Liability of Initial Carrier of Interstate Shipment for Negligence---Necessity of Stating Ground of Exception---Cross-examination---Discretion of Court---Presumption That Court Exercised Its Discretion---Abuse of Discretion---Evidence as to Schedule Time of Trains Carrying Shipment---Ground for Motion for Directed Verdict Too General---Duty of Carrier as to Time of Transportation of Goods---Determination of Reasonable Diligence on Part of Carrier---Damages Caused by Fault of Shipper or Inherent Nature of Goods---Negligent Act of Carrier as Proximate Cause of Damage---Burden of Proof---Jury Question---Proximate Cause---Presumption Arising from Unusual and Unexplained Delay in Transportation---Duty of Carrier with Respect to Anticipation of Obstructions to Transportation---Delay Caused by Operation of Law---Effect on Carrier of Shipper's Assumption of Care of Shipment---Instructions as to Prerequisites to Recovery against Carrier for Delay in Transportation---Review by Supreme Court Limited to Questions Raised Below---Damages---Freight Paid on Entire Carload as Item of Damage although Shipment Not Entirely Destroyed---Interstate Commerce Act.

1. Under Carmack Amendment of Hepburn Act [49 U.S.C. A., 20 (11 12)], initial carrier of interstate shipment is liable for loss, caused by fault of its connecting carrier, which it is deemed to have adopted as its agent.

2. Where counsel objected to admission of testimony and was allowed an exception to its admission, but no ground of objection or exception was stated, question of its admissibility is not for consideration by Supreme Court.

3. Scope and extent of cross-examination is matter within sound discretion of trial court, and, in absence of abuse thereof ruling is not revisable in Supreme Court.

4. Nothing appearing to contrary, Supreme Court will presume that trial court limited cross-examination of witness as matter of discretion.

5. In action against carrier for damage to banana shipment by unreasonable delay in transit, in which shipper's messenger testified as to time he allowed for shipment to keep without ripening, after leaving certain point, exclusion of question on cross-examination as to what he would have done had shipment reached certain point on Sunday, or he had known it would reach that point on that day, held not to show an abuse of discretion.

6. In such action, admission of testimony on direct examination of shipper's messenger as to schedule time of train carrying shipment, at certain point, subject to exception on ground of immateriality, held to show no prejudicial error.

7. Motion for directed verdict on ground that evidence, taken in its most favorable light for plaintiff, made out no cause of action against defendant, held too general for consideration.

8. A carrier is not an insurer against delay, reasonable diligence to prevent it being all that is required.

9. What is reasonable diligence on part of carrier to prevent delay in shipment is to be decided in view of the circumstances one of which is perishable nature of freight carried.

10. Carrier is not liable for damages caused by fault of shipper or inherent nature of goods, especially where freight is perishable and shipper places an agent in charge of goods who accompanies them during transit.

11. Where carrier itself is guilty of some negligent act or omission without which, notwithstanding fault of shipper, loss would not have occurred, it is liable.

12. Where it is shown that goods were delivered to carrier in good condition, and by it to consignee in bad condition, burden is upon carrier to prove that damage was due to cause for which it was not responsible, even though goods are perishable in nature, in absence of stipulation to contrary in bill of lading.

13. In action against carrier for damages to banana shipment by unreasonable delay in transit, held that evidence made question whether delay in delivery and damage to bananas were proximately caused by negligence of defendant for jury.

14. In such action, where evidence tended to show that, had it not been for "tie-up" at point where crew of train had worked maximum time under Federal Hours of Service Act (45 U.S.C. A., 61--66), shipment would have proceeded to destination on an earlier train, whether or not such delay was a proximate cause of the damage, under all the circumstances, was a question for the jury.

15. In such action, where evidence tended to show delay of shipment at point where there was a "tie-up" because crew of train had worked maximum time under Federal Hours of Service Act (45 U.S.C. A., 61--66), was unusual, and no explanation was offered by defendant why another train crew was not available, or why by exercise of ordinary care and diligence shipment could not have been continued in time to connect with an earlier train, charge that failure on part of defendant to excuse or explain delay raised presumption of negligence, held without error.

16. While a carrier may be excused for delay caused by intervention of a vis major, it is bound to exercise at least ordinary foresight in anticipating the obstruction, and due diligence in exerting proper means of overcoming it, and in accomplishing transportation as soon as it ceases to operate.

17. In action against carrier for damages to banana shipment by unreasonable delay in transit, whether due diligence had been exercised by defendant in anticipating and avoiding effect of "tie-up," when crew of train had worked maximum time under Federal Hours of Service Act (45 U.S.C. A., 61--66), held for jury, as against defendant's contention that it could not be held responsible for a delay caused by operation of law.

18. Obligation assumed by shipper to care for shipment of fruit and keep it in good condition while in transit, held not to absolve carrier from its duty to exercise reasonable diligence to avoid delay.

19. In action against carrier for damages to banana shipment by unreasonable delay in transit, questions of reasonable care on part of defendant and whether time taken to transport shipment was reasonable, held properly submitted to jury under evidence in case.

20. In such action, instruction that in order to entitle plaintiff to recover, jury must find a failure to transport and deliver within a reasonable time, and that such failure was the proximate cause of the damage, held without error.

21. In such action, instruction that if jury should find from evidence that, if transportation and delivery of bananas in damaged condition might have been avoided or prevented by human prudence or foresight, pains or care, reasonably to be expected of carrier, but not exercised by it, defendant was liable, held not erroneous by reason of use of word "prevent," since language of court, in connection with other parts of charge, meant only that defendant would be liable for damage caused by lack of reasonable care and foresight on its part, or on part of its connecting carrier, having regard to inherent tendency of bananas to decay.

22. In such action, failure of trial court to charge that shipper assumes risk of ordinary delays in transportation, held not error, where jury were clearly given to understand that an unusual and unexplained delay was essential to defendant's liability.

23. In such action, failure to charge that time taken for shipment to move from shipping point to destination did not establish negligence, held not error, since question of whether time taker, was reasonable was for jury.

24. Supreme Court in considering exception to charge will confine its attention to specific objection made below, questions not raised in trial court not being for consideration in Supreme Court.

25. In action against carrier for damage to banana shipment by unreasonable delay in transit, charge allowing as an item of damages, in event verdict was for plaintiff, of "freight on this carload," held not erroneous, against objection that it violated Interstate Commerce Act (49 U.S.C. A., 2), prohibiting every kind of rebate, drawback, or other device whereby a greater or less sum is collected from one person than from another for like kind of service, since allowance of freight charges, paid at destination, upon perishable goods injured, but not entirely destroyed, by delay in transportation caused by carrier, is not a violation of such law, nothing appearing to indicate an evasion or attempt to evade provisions of that statute.

ACTION OF TORT against carrier for damage to banana shipment by alleged unreasonable delay in transit. Plea, general issue. Trial by jury at the March Term, 1928, Washington County, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.


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.

H. C. Shurtleff for the defendant.

Deane C. Davis and John W. Gordon for the plaintiff.



The shipment left New York City on January 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...

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