Stevens v. Northern Cent. Ry. Co.

• Decision Date: 23 June 1916
• Docket Number: 46.
• Citation: Stevens v. Northern Cent. Ry. Co., 129 Md. 215, 98 A. 551 (Md. 1916)
• Parties: STEVENS v. NORTHERN CENT. RY. CO.
• Court: Maryland Court of Appeals

98 A. 551

129 Md. 215

STEVENS v. NORTHERN CENT. RY. CO.

No. 46.

Court of Appeals of Maryland

June 23, 1916

Appeal from Baltimore Court of Common Pleas; H. Arthur Stump, Judge.

"To be officially reported."

Action by R. Nelson Stevens, trading as Stevens Bros., against the Northern Central Railway Company.Judgment for defendant, and plaintiff appeals.Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, BURKE, URNER, STOCKBRIDGE and CONSTABLE, JJ.

Warren A. Stewart, of Baltimore (Hyland P. Stewart, of Baltimore, on the brief), for appellant.

Shirley Carter, of Baltimore (Bernard Carter & Sons, of Baltimore, on the brief), for appellee.

BRISCOE J.

The plaintiff is a commission merchant, engaged in the grain fruit, and produce business in the city of Baltimore.The defendant is the Northern Central Railway Company, a body corporate, and a common carrier, and this suit is brought against the defendant to recover damages for the alleged failure of the railway company to carry and deliver with reasonable dispatch, and for the delay in transportation certain perishable vegetables from Baltimore city to Cleveland, Ohio, shipped and consigned to the Bigalow Fruit Company, at the last-named city.

The declaration contains one count, and avers, in substance, that on the 14th day of June, 1913, the plaintiff delivered at Baltimore, to the defendant 328 baskets of wax beans, all in good condition, for shipment to the plaintiff's agents and commission merchants, Bigalow Fruit Company, at Cleveland, Ohio, for sale, whereupon the defendant received the shipment for such transportation under proper refrigeration, and delivered to the plaintiff its receipt and bill of lading from Baltimore city, Md., to Cleveland Ohio.The vegetables were loaded into a refrigerator car under refrigeration, on said defendant's tracks at Baltimore, car initials P. R. R. No. 108786, and the defendant and its agents, servants, and connecting carriers, instead of carefully attending to the refrigeration en route, and carefully and promptly handling the property, and with reasonable dispatch delivering the vegetables in the proper discharge of its duty, negligently and carelessly attended to the proper refrigeration and handling of same, and did not deliver the same in Cleveland, Ohio, to the plaintiff's agents with proper dispatch, or in good condition, the same not having been delivered until Monday afternoon at 4:30 o'clock p. m., of June 16, 1913, when they should have been delivered there, according to the promises of the agent of the defendant, in the early morning of June 16, 1913, and, when delivered, were in a greatly damaged and ruined condition, arising from the delay and want of proper refrigeration and negligent handling of the same and the loss of markets they should have reached if they had been handled with reasonable dispatch, resulting in a great loss to the plaintiff.

There are 37 exceptions in the record relating to evidence and 1 to the action of the court in granting the defendant's prayer at the close of the plaintiff's testimony, withdrawing the case from the consideration of the jury.

The proof shows that the defendant received from the plaintiff on the 14th of June, 1913, 328 baskets of wax beans to be shipped from Baltimore to Cleveland, Ohio, in accordance with the terms of a bill of lading, issued on that date.The shipment reached its destination in good condition, but from four to eight hours later than the usual time for arrival of the train, and in consequence of this delay, it is contended the plaintiff was unable to get the contents of the car on the market until early Tuesday morning, June 17th, when the beans sold for a less price than they would have sold for if they had been forwarded with reasonable dispatch and had arrived in time for the market of June 16th.By the bill of lading it was agreed that:

Every service to be performed hereunder shall be subject to all the conditions, whether printed or written herein contained (including conditions on back hereof), and which are agreed to by the shipper and accepted for himself and his assigns.

By the third condition of the bill of lading, it is provided:

Sec. 3.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, unless by specific agreement indorsed hereon.Every carrier shall have the right in case of physical necessity to forward said property by any railroad or route between the point of shipment and the point of destination; but if such diversion shall be from a rail to a water route the liability of the carrier shall be the same as though the entire carriage were by rail.

The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence.

While it is conceded there was no special agreement indorsed on the bill of lading that the carrier in this case was bound to transport the property in time for any particular market, yet it was its duty to carry the goods from Baltimore to Cleveland, and there to deliver them to the consignee with reasonable dispatch.In P. B. & W. R. Co. v. Diffendal,109 Md. 509, 72 A. 193, 458, it is said:

"It became the implied duty of the defendant in accepting the carload of fruit for transportation to use due diligence to deliver the same at its destination within a reasonable time, *** and for a breach of this duty, resulting in loss to the plaintiff, the defendant was responsible in damages, whether the loss was occasioned by a fall in the market price, or by damage to the goods themselves, or by a combination of the two causes."N. Y., P. & N. R. R. v. Prod. Exchange,122 Md. 222, 89 A. 433;P., W. & B. R. R. Co. v. Lehman,56 Md. 209, 40 Am. Rep. 415.

The principal question in the case is whether the...