Ruppel v. Allegheny Valley Railway , 167 Pa. 166 ( 1895 )

Opinion by

Mr. Justice Dean,

Ruppel, the plaintiff, by wire, had consigned to him at Pitts-burg, from New Orleans, a car load of potatoes; they were shipped 4th of June, and reached Pittsburg 10th June, 1892, being about six days on the way; before the car arrived, plaintiff had ordered its transfer to defendant’s road for shipment to Buffalo, and when it came into the yard, he, in company with two others, examined the potatoes, which were packed in barrels, and pronounced them in good condition. The same day the car was transferred to defendant’s road and he, the next morning, took from defendant a bill of lading for shipment to Buffalo; the bill stated quantity, 164 barrels potatoes ; advance freight charge, $117.67. It also contained this stipulation: “The amount of anj'- loss or damage .... shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a lower value has been agreed upon.” On the evening of same day, the 11th, the car was made part of a train which was started for Buffalo. About thirty miles out of Pittsburg it was discovered to have a hot box; in consequence it was side tracked at Kittanning, forty-two miles from Pittsburg, for repairs ; this was about midnight of Saturday the ■11th. The car remained at Kittanning without repairs until Monday morning the 13th, when it was run to East Brady, twenty-three miles towards its destination, where an examination showed the brass of a journal to be broken; this was replaced in about thirty minutes. On Monday, in the evening, the car ■was again coupled to a train on its way to destination, and arrived at Oil City early on the next morning, Tuesday the 14th. Here it had to be transferred to a connecting line, the Western New York and Pennsylvania, to reach destination. The inspectors of this road refused to receive it unless repaired; it was again delayed until repaired; in the afternoon of the same day it was again started for Buffalo, where it was delivered to Ruppel’s agent, Thursday morning, June 16th. Many of the potatoes •were then found to be decayed and wholly worthless, and the remainder considerably damaged.

The plaintiff brought suit for damages, averring negligence of defendant, in not, under the circumstances, moving the car .with reasonable dispatch to destination. The court submitted the question of negligence to the jury, who found for plaintiff, and defendant appeals. There are seven assignments of error which in substance embrace three questions: 1. Was there such evidencé of negligence as warranted the court in submitting that question to the jury? 2. If so, was there sufficient evidence that this negligence caused the damage .complained of? 3. Was the measure of damage adopted by the court, under this contract, correct?

This written contract only expresses what the law implies on the part of the common carrier, namely, that goods which it accepts, shall be transported with reasonable dispatch towards destination. Whether the contract has been kept is a question of fact. If there be contradictory evidence, or if the facts warrant opposite inferences the case must go to the jury. Here it was undisputed, that in the usual course of transportation this car ought to have reached Buffalo on Monday; other cars which started with it on the same train did arrive at that place on Monday; this car was delivered on Thursday, three days later; in about the same time from Pittsburg to Buffalo as from New Orleans to Pittsburg. It was not an unwarranted assumption on part of plaintiff, that reasonable dispatch was the ordinary and usual time taken for the movement of such freight between those points. Appellant’s counsel argues in pressing his assignment that there was not sufficient evidence of negligence; in his view there is, perhaps, no more accurate statement of what is reasonable dispatch, than that of Pollock, C. B., in Briddon v. G. N. Ry. Co., 28 L. J. Ex. (N. S.) 51: “ The contract was to carry the cattle to Nottingham without delay, and in a reasonable time, under ordinary circumstances.” Here it is argued, under ordinary circumstances the car would have been delivered on Monday, but because of the happening of a circumstance which could not be provided against, for it could not be foreseen — a hot box — it was nbt delivered until Thursday. There was evidence, that usually no degree of care in inspection or operation can guard against this obstruction to speedy transportation ; that a car in apparently good condition as to journals and axles, and properly lubricated, will at times have a hot box. And in so far as the delay was necessary because of a hot box, which could not with ordinary care have been provided against, the dispatch was reasonable. But then plaintiff replies to this, appellant accepted this car at Pittsburg after it had made the trip from New Orleans without inspection. The car inspector of defendant at East Brady, where it was repaired, testified the brass of the journal was broken, and that he thought the brass in the first place had not fitted the journal; that it was not the proper pattern. The car repairman for defendant at Oil City, where this car had been rejected by the connecting road, testified it had also had a broken center plate and bolt and damaged timbers. With a broken brass and the other injuries, at this distance from Pittsburg, after a journey of more than 1000 miles to Pittsburg, and no proof of inspection there, the appellee argued that it was out of repair and defective before leaving Pittsburg; that ordinary care required inspection and repair at that point, or a transfer of the potatoes to another car. It is settled, “ a railroad company is bound to provide cars reasonably fit for the conveyance of the goods it undertakes to carry, and that the carrier owes the same duty of inspection of cars received from another road and run over its own lines, as in respect to its own cars: ” Wood on Railroads, sec. 430; Patterson on Railway Accident Law, p. 238. To the same effect are all the authorities in this country and England. Whether the cause of this hot box existed, and by reasonable inspection could have been detected in Pittsburg, was a question for the jury on the evidence. The court could not weigh it to determine the truth. Clear and full instructions were given on this point, and we see no error in the submission.

As to whether the delay resulted in the loss, the evidence on that point, though not clear, is not purely conjectural. No less than three witnesses, of experience in shipping and dealing in potatoes, testify in substance, that the condition of these when the car was opened at Buffalo indicated, that decay had commenced within two or three days. If the loss resulted from not being taken out of the car two or three days sooner, and these two or three days were beyond that reasonable time which under the circumstances the law allowed the carrier, the defendant was answerable for the loss. This question was also properly submitted to the jury on the evidence.

How is the loss to be measured ? The contract stipulates that the market price of the potatoes at Pittsburg at date of shipment is to be the measure of damages. If the loss be not attributable to the negligence of the carrier, then this condition of the contract is binding on the consignor. There is no rule of public policy which forbids it. But the verdict of the jury has determined as a fact that the loss was occasioned by the negligence of defendant. The carrier cannot by contract in this state limit his liability in case of negligence. The law on this subject is so clearly stated by our brother Williams, and so amply vindicated by a citation of authorities both of this country and in England, in the late case of Willock v. The Railroad, 166 Pa. 184, that repetition is unnecessary. And the general principle announced in that case is conceded by counsel for appellant, but it is argued it has no application here; this stipulation it is urged is not to relieve the carrier from any liability for negligence, but was adopted to avoid the uncertainty which would otherwise be incident to proper proof of loss. If this were the object of the stipulation there is no public policy which would avoid it. The trouble with this view, however, is that the condition is palpably a limitation of or reduction on the loss of the shipper. The sole inducement to shipment of marketable commodities is the higher price at point of destination. This alone creates and stimulates international, interstate and domestic trade. Railroads and all other common carriers would have but lean incomes if this were not so. The plain effect of it is, not alone the avoidance of inconvenience and uncertainty in the demand, but a restriction in the amount of it, a reduction in the real loss. It is therefore void.

The fact that Buffalo was not on defendant’s line and that its terminus was Oil City, does not in view of this contract and the facts fix the market price at Oil City as the measure of damages. Defendant accepted the car for transportation safely to Buffalo, and charged a through freight rate per 100 pounds from Pittsburg to that point; it was not answerable for any default or neglect beyond its own line, but it undertook to carry safely and with reasonable dispatch on its own line, and deliver to the connecting road on the route to destination. The verdict of the jury finds it did not carry with reasonable dispatch on its own line towards destination, and that this caused the damage sustained at Buffalo ; the loss there is therefore the measure of damages. Pa. R. R. Co. v. Plank Road Co., 71 Pa. 350, cited and relied on by appellant is clearly distinguishable from this case. The contract averred there on part of the company was to carry the lumber from sidings on its own road to Corry, at the end of it; from whence it was to be transported by the Oil Creek railroad to Titusville, twenty-six miles further. The plaintiffs did not claim there was any agreement, express or implied, to forward the lumber by delivery to a connecting road, but only that defendant was bound to transport to Corry; and further averred failure in this particular as the cause of the damage, and then that the measure of the damage was the loss at Titusville. Having that contract in view, this court said: “ What then ought to be the measure of damages on the failure of duty of the railroad company to transport to Corry ? The rule is compensation; such damage as might reasonably have been anticipated, and within view of the parties.”

In this case the shipment is by the bill of lading from Pitts-burg to Buffalo on a through rate; Oil City is not mentioned. This question now raised does not seem to have occurred to appellant at the trial in the court below; there was no evidence concerning it, and it was not mentioned in the written points. The only instruction asked on the subject in this particular is in defendant’s third point, thus: “ The measure of damages in this case is the market value of the potatoes at the time and place of shipment, and the freight paid to Buffalo, less the amount received for the potatoes at Buffalo.”

This the court affirmed, unless, the loss resulted from the negligence of defendant, in which case the Buffalo market would determine the measure of damages. But even if it had been raised by a prayer on part of appellant for special instructions, under this contract, and “ what reasonably might have been anticipated, and within view of the parties,” it ought not to have been affirmed.

What we have said disposes of all the assignments of error demanding notice. The judgment is affirmed.

Mitchell, J., dissents from so much of this opinion as relates to the measure of damages.