W.H. Blodget Co. v. New York Cent. R. Co.

Decision Date05 December 1927
Citation159 N.E. 45,261 Mass. 365
PartiesW. H. BLODGET CO. v. NEW YORK CENT. R. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Report from Superior Court, Worcester County; E. T. Broadhurst, Judge.

Action by the W. H. Blodget Company against the New York Central Railroad Company. On report to full Supreme Judicial Court. Judgment for defendant.

L. E. Stockwell, of Worcester, for plaintiff.

W. L. Parsons, of Boston, for defendant.

CROSBY, J.

This is an action by the consignee of a shipment of celery, to recover damages arising from its injury by freezing while in transit between Rochester, N. Y., and Worcester in this commonwealth. The case is before us on a report of a judge of the superior court with an agreed statement as to all the material facts.

A. J. Warren & Son, of Rochester, having sold the celery to the plaintiff, on December 17, 1924, requested the defendant to place an empty refrigerator car on the siding near the plant of the Rochester Cold Storage & Ice Company, where the celery was in cold storage. The car was so placed the same day. The next day the storage company loaded it, closed and sealed the doors, and, as agent for the shippers, consigned the celery to the plaintiff at Worcester, over the defendant's railroad. At that time the celery was in good, marketable condition. The shippers' agent then presented to the defendant a bill of lading covering the shipment, which was signed by an agent of the latter and returned to the shippers. The car left Rochester for Worcester, a distance of 376 miles, on December 19, and arrived in Worcester at 3:10 in the morning of December 21. On delivery to the plaintiff, a portion of the celery was found damaged by freezing, which occurred during transportation by the defendant as a common carrier.

It is agreed that the defendant charged and received for the transportation of the freight the carload rate for celery as prescribed by the carriers' established schedules or tariffs of rates duly published and filed with the Interstate Commerce Commission as required by the Interstate Commerce Act, and that the shipment moved in the usual course and with reasonable dispatch. The car was a standard refrigerator car and was in good condition in all respects while the celery was contained in it. Cars of this type are used in cold weather ‘because the heavy insulation tends to exclude the cold which may be encountered during the transit and are the best known railroad vehicles for that purpose. They may be artificially heated before or during the loading or during transit by portable stoves or heaters placed temporarilyin the bunkers, but the car which carried this shipment of celery was not heated, * * * by stoves or otherwise, either before or during the loading or during the transit.’

The bill of lading is in the standard form of uniform straight bill of lading, approved by the Interstate Commerce Commission and prescribed by the duly published schedule of rates filed with the commission as required by the act. Under it the defendant acknowledges receipt of the merchandise ‘subject to the classifications and tariffs in effect on the date of the issue of this original bill of lading.’

The bill of lading also provides as follows:

‘It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions not prohibited by law, whether printed or written, herein contained, including the conditions on back hereof, which are hereby agreed to by the shipper and accepted for himself and his assigns.’

Among the conditions on the back of the bill of lading are the following:

Sec. 1. (a) The carrier or party in possession of any of the property herein described shall be liable as at common law for any loss thereof or damage thereto, except as hereinafter provided. (b) No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, the authority of law, or the act or default of the shipper or owner, or for natural shrinkage. * * * Except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession), the carrier or party in possession shall not be liable for loss, damage, or delay occurring while the property is stopped and held in transit upon the request of the shipper, owner, or party, entitled to make such request, or resulting from a defect or vice in the property, or for country damage to cotton, or from riots or strikes. * * *

Sec. 2. (a) 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.’

The classification containing the carriers' schedule of rates, fares and charges, in force at the time the shipment in question was made and applicable thereto, contains the following and other provisions:

Rule 31. * * * Section 2. Ratings provided for freight in carloads do not obligate the carrier to furnish heated cars, nor to maintain heat in cars, for freight requiring such protection, except under conditions which the carriers' tariffs provide. * * *

Rule 33. Stoves, used in cars, and the fittings and fuel therefor must be furnished by shipper and the fuel must consist of coal, coke, or charcoal, unless otherwise permitted by regulations of individual carriers. * * * Shippers must provide men to care for fires. With shipments of fresh fruit or fresh or green vegetables one man to care for fire will be carried free in charge of one or more cars; no free return passage to be given. With shipments of perishable property other than fresh fruit or fresh or green vegetables man or men in charge to pay full fare. No charge will be made for the transportation of stoves, fittings or fuel in the car with the freight requiring such protection.’

It is agreed that there is no tariff applicable to the defendant or to any other railroad company which provides for the furnishing by the carrier of artificial heat for the protection of perishable merchandise against freezing in the territory through which this shipment moved or in the Eastern States generally, nor is it the practice of carriers to furnish or maintain such heat.

The first question is whether the defendant is liable at common law for the injury arising while the celery was in transit. A common carrier generally is practically an insurer of goods in its possession. This rule, however, is subject to certain well-recognized exceptions. A carrier is not liable for loss or damage arising from an act of God, from the public enemy, nor for the destruction of goods or injury due to their inherent nature, if the negligence of the carrier did not occasion or contribute to the injury. It has been held that where perishable goods such as fruit and vegetables are injured or destroyed in transit, the carrier is not liable if its own negligence did not cause the injury. It was said in Swetland v. Boston & Albany Railroad, 102 Mass. 276, at page 283:

‘If the owner of goods, which are liable to be injured by freezing, chooses to send them at a season of the year when they are exposed to such a risk, he takes the risk himself.’

A carrier, in the absence of an agreement to do so, is not bound to heat cars to protect perishable goods from freezing. McGovern v. Ann Arbor Railroad, 165 Wis. 525, 162 N. W. 668;McGraw v. Baltimore & Ohio Railroad, 18 W. Va. 361, 41 Am. Rep. 696;Cassone v. New York, New Haven & Hartford Railroad, 100 Conn. 262, 123 A. 280;Ross v. Maine Central Railroad, 112 Me. 63, 90 A. 711;Schwartz & Co. v. Erie Railroad, 128 Ky. 22, 106 S. W. 1188,15 L. R. A. (N. S.) 801;Vail v. Pacific Railroad, 63 Mo. 230;Standard Pickle Co. v. Pere Marquette Railway, 222 Mich. 639, 193 N. W. 300;White v. Minneapolis & Rainy River Railway, 111 Minn. 167, 126 N. W. 533;Atlantic Fruit Co. v. Pennsylvania Railroad, 149 Md. 1, 130 A. 63;Leypoldt & Pennington Co. v. Davis, Director General, 112 Neb. 350, 199 N. W. 463.

In the case at bar the goods were shipped about the middle of December, a time in this climate when freezing weather is not unusual, but might reasonably be expected. There is nothing in this record to show that the cause of injury to the shipment was so unexpected, unusual or extraordinary as to be said to have arisen from an act of God. Such weather is an event which according to common experience, naturally might be expected. The case cannot be distinguished in principle from Swetland v. Boston & Albany Railroad, supra, and is governed by it.

It is manifest that at common law the defendant cannot be charged with liability merely because...

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