Sarkis Saliba v. New York Central Railroad Co

• Decision Date: 08 February 1928
• Citation: 140 A. 491,101 Vt. 56
• Parties: SARKIS SALIBA v. NEW YORK CENTRAL RAILROAD CO
• Court: Vermont Supreme Court

140 A. 491

101 Vt. 56

SARKIS SALIBA v. NEW YORK CENTRAL RAILROAD CO

Supreme Court of Vermont

February 8, 1928

January Term, 1928.

Carriers---Effect of Allegation in Declaration That Defendant Is Common Carrier---Duties of Common Carrier Re Transportation and Delivery of Goods---Pleading---Allegations Making Prima Facie Case Sufficient---Prima Facie Effect of Acceptance of Merchandise by Common Carrier for Transportation---Sufficiency of Allegations in Action for Dam- ages for Delay in Transit---Duty of Carrier To Explain or Excuse Delay of Shipment---Variance---Declaration for Damages for Delay in Shipment Need Not Set Forth Terms of Bill of Lading---Ground of Demurrer First Raised in Supreme Court.

1. Where declaration, in ACTION OF TORT against common carrier for damages occasioned by delay of goods in transit, alleged that defendant was common carrier, duties and obligations imposed upon it by common law follow as matter of course.

2. Common carrier, among other duties, has that of safe transportation of goods delivered to it for carriage, and delivery of such goods at destination within reasonable time.

3. One is required to allege in his declaration only what is necessary to prove in making out a prima facie case.

4. Prima facie, defendant common carrier, by accepting merchandise for transportation, held to have incurred responsibilities put upon it by common law, or that law as modified by statute.

5. In action of tort against common carrier for damages occasioned by delay of goods in transit, it is sufficient to allege delivery of goods to carrier, delay in arrival, and consequent injury.

6. Since causes of delay are particularly within knowledge of carrier, it is for carrier to excuse or explain such delay and bring itself within an exception to its liability, if such exists.

7. In action of tort against common carrier for damages by delay of goods in transit, even though negligence is alleged and fails of proof, there is no variance, and plaintiff may recover, if evidence shows a case under general rule respecting liability of carriers.

8. In such action, declaration need not set forth terms of bill of lading under which shipment proceeded, and legal duty to be deduced therefrom, since, if any special contract therein contained limits defendant's common law liability, it is for defendant to bring itself within its operation.

9. Claim not made ground of demurrer to complaint in lower court will not be considered by Supreme Court on exceptions to overruling of defendant's demurrer.

ACTION OF TORT against common carrier for damages occasioned by delay of goods in transit. Heard by court on demurrer to declaration at September Term, 1927, Washington County Buttles, J., presiding. Demurrer overruled and declaration adjudged sufficient. The defendant excepted. The opinion states the case.

Judgment affirmed, and cause remanded.

H C. Shurtleff for the defendant.

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

Present WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

MOULTON

The declaration alleges that the defendant, on the date in question, was a common carrier of goods for hire, and that the plaintiff delivered to it a carload of bananas to be safely, expeditiously, and securely freighted, carried, and conveyed, as a perishable commodity, from New York City to the city of Barre for a certain reasonable reward to be paid by the plaintiff; yet the defendant, not regarding its duty as a common carrier, but contriving and intending to injure the plaintiff, did not and would not safely, expeditiously, and securely freight, carry, and convey the bananas from New York to Barre and there safely, securely, and with reasonable despatch deliver the same to the plaintiff, but, on the contrary, so carelessly and negligently behaved and conducted in the premises that, by reason of its negligence and carelessness and delay in transit, a large portion of the bananas became spoiled and unmerchantable.

The defendant demurred to the declaration. After hearing, the demurrer was overruled by the trial court, and the case is here on the defendant's exceptions.

It is argued that this declaration fails to allege facts which show the existence of a duty owing...