South Carolina Asparagus G. Ass'n v. Southern Ry. Co.

• Decision Date: 13 January 1931
• Docket Number: No. 3058.,3058.
• Citation: 46 F.2d 452
• Parties: SOUTH CAROLINA ASPARAGUS GROWERS' ASS'N v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

46 F.2d 452 (1931)

SOUTH CAROLINA ASPARAGUS GROWERS' ASS'N v. SOUTHERN RY. CO.

No. 3058.

Circuit Court of Appeals, Fourth Circuit.

January 13, 1931.

James A. Kennedy, of Williston, S. C., and John F. Williams, of Aiken, S. C. (L. E. Croft and Henry Busbee, both of Aiken, S. C., on the brief), for appellant.

J. E. Harley, of Barnwell, S. C. (Frank G. Tompkins, of Columbia, S. C., Harley & Blatt and Sol Blatt, all of Barnwell, S. C., and L. M. Abbot, of Washington, D. C., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and COLEMAN, District Judge.

NORTHCOTT, Circuit Judge.

In March, 1929, appellant, South Carolina Asparagus Growers' Association, which was the plaintiff below, and which will be here referred to as the plaintiff, delivered to the appellee, the Southern Railway Company, which was the defendant below and which will be here referred to as the defendant, at Williston, S. C., for transportation a refrigerator car load of fresh asparagus, containing 910 crates. The car was delivered, in accordance with the shipping contract to Philadelphia, where it arrived promptly and in due time. On opening the car at Philadelphia the asparagus was found to be in a very bad condition, and the consignee refused to accept the shipment. The terminal carrier disposed of the same and realized $694 net after defraying the usual incidental expenses. The plaintiff brought this suit for the value of the goods, and upon the first trial below the jury rendered a verdict for the amount claimed in favor of the plaintiff. The trial judge set aside the verdict and granted a new trial. The second trial was had in February, 1930, the defendant in the meantime having paid into court the said sum of $694 admittedly received from the shipment. The trial judge directed a verdict for the plaintiff for the said sum of $694 and costs up to the time of the tender, and a judgment was entered in favor of the defendant for the costs subsequent to the tender, from which action of the court this appeal was taken.

The rule has been uniformly laid down by the United States Supreme Court that the trial judge not only may but should direct a verdict where the evidence is of such a conclusive character that if a verdict were rendered for one party, whether plaintiff or defendant, it would have to be set aside in the exercise of a sound judicial discretion. What is known as the scintilla rule has never been approved by the federal courts. Marion County v. Clark, 94 U. S. 278, 24 L. Ed. 59; Small Co. v. Lamborn & Co., 267 U. S. 248, 254, 45 S. Ct. 300, 69 L. Ed. 597; Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720; Empire State Cattle Co. v. Atchison, T. & S. F. R. Co., 210 U. S. 1, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70; Barrett v. Virginian Ry. Co., 250 U. S. 473, 476, 39 S. Ct. 540, 63 L. Ed. 1092.

This rule has been followed and approved by this court on a number of occasions. Anderson v. Southern Railway Co. (C. C. A.) 20 F.(2d) 71; Lamborn v. Woodard (C. C. A.) 20 F.(2d) 635; Flannagan v. Provident Life & Accident Ins. Co. (C. C. A.) 22 F. (2d) 136; Livingston v. Atlantic Coast Line R. Co. (C. C. A.) 28 F.(2d) 563; Standard Oil Co. v. Cates (C. C. A.) 28 F.(2d) 718.

Bearing in mind that in considering a motion for a directed verdict, the evidence must be regarded in the light most favorable to the opponent of the motion, and that the weight of the testimony is for the jury, after a study of the record in this case, we have reached the conclusion that the action of the trial judge was proper. There are certain physical facts, undisputed and indisputable, that forbid the plaintiff recovering in this case.

It is admitted that on the day of this shipment the plaintiff received an unusually large amount of asparagus for shipment, and had not ordered sufficient cars in which to load it. It is also admitted that this was the largest number of crates of asparagus that plaintiff ever shipped in any one car. The width of the car was 100 inches, and the evidence shows that in the car were packed 910 crates, filled with green asparagus tips. These crates measured 11 inches in width, and nine rows were placed across the car five rows high piled on top of each other. A simple mathematical calculation shows that there was only one inch of space to be distributed between the nine rows. This was clearly inadequate, showed bad packing and loading, and undoubtedly prevented proper circulation of air for the purposes of ventilation.

When the car reached its destination and was opened, the temperature in the car was taken by a food inspector, which showed the temperature at the...