Carter v. Atlantic Coast Line R. Co.

August 4, 1937.

The opinion of the Court was delivered by This action, by J.H. Carter and W. Frank Sims, trading and doing business under the firm name and style of Carter Sims Company, as plaintiffs, against the defendant, Atlantic Coast Line Railroad Company, was commenced in the civil Court of Florence County, this State, April 30, 1936, for the purpose of recovering alleged damages against the defendant, sustained by the plaintiffs on account of the negligence of the defendant in transporting from Petersburg, Virginia, to Boston, Massachusetts, a carload of green beans, diverted from Petersburg, Virginia, to Boston, Massachusetts, at 1:50 p. m. June 1, 1935. According to the allegations of the plaintiffs, the beans in question should have arrived in time for the market on June 3, 1935, but on account of the alleged delay of said shipment, caused by the defendant, the shipment did not reach the point of destination in time for sale on the market until June 4, 1935. According to the record in the cause, the defendant set forth in its answer that it admitted that the beans arrived only in time for the June 4, 1935, market, but denied that the said delay was the result of any negligence of the defendant, but on the contrary alleged that the shipment did not arrive sooner than June 4th on account of the delay of the plaintiffs in ordering the diversion.

The cause being at issue, the case was tried in said Court before his Honor, Judge R.W. Sharkey, and a jury, January 19, 1935, and resulted in a verdict for the plaintiffs in the sum of $285.93. In this connection I call attention to the fact that the parties agreed, in the trial of the case, that, in the event the plaintiffs were entitled to a verdict, the amount should be the said sum of $285.93. From entry of judgment on the verdict, the defendant, pursuant to due notice, has appealed to this Court, imputing error to his Honor under three exceptions, but in appellant's brief, prepared for this Court, appellant states only one question for the consideration of this Court, to wit: "Is the mere fact that a perishable commodity moving in interstate commerce does not reach destination for a particular market, the possibility of reaching which is indicated in the schedule, evidence of negligence sufficient to support a verdict when the contract under which the commodity is shipped contains a stipulation that ``no carrier is bound to transport said property by any particular train * * * or in time for any particular market or otherwise than with reasonable dispatch?'"

Of course, if nothing appeared in addition to the facts stated in this question, the question would have to be answered in accordance with appellant's contention, but, under my view, more than one reasonable inference may be drawn from the testimony introduced at the trial one of which is in accord with the respondents' contention and supports the verdict rendered by the jury. It is, in effect, conceded by the parties that, under the law, perishable goods must be transported with reasonable dispatch. In this connection attention is called to the following freight schedule introduced on the trial: "Note B — This schedule may, under ordinary conditions, and subject to operation of advance sections of perishable trains of P.R.R. and B. O.R.R., from Potomac yard, be expected at destinations indicated, on carload perishable traffic when billed through to destination from point of origin, or diverted in time for dispatch on all sections of A.C.L.R. R. perishable train leaving Jacksonville or Waycross the day following date of shipment. The 4:15 A.M. arrival at Boston via N.Y.N.H. H., does not insure auction market delivery on B. M. tracks morning of arrival. Auction market delivery on B. M. tracks at Boston not guaranteed on the 4:00 A.M. or 4:45 A.M. arrival, but under favorable circumstances may be protected."

It is true, the shipment in question did not start from Jacksonville or Waycross or leave said places the day following date of shipment, but there is no just reason why the rule expressed above should not apply to the shipment in this case. The shipment in the case at bar started from Tabor City, N.C., went by Petersburg, Virginia, and was diverted from Petersburg to Boston. Certainly the goods in this shipment were perishable and the same deserved all the consideration that any shipment would be entitled to send out from the above-named places, Jacksonville and Waycross, over the defendant's road. It is, in effect, conceded that the shipment in question was made up of perishable goods. There is nothing to show that the ordinary condition did not exist at the time the shipment in question was made. The latter part of May and the early part of June is known by shippers and carriers to be the regular time for transporting perishable goods in great quantities, such as contained in this shipment. As contended by the respondent, the number of cars at Petersburg was not unusual or unexpected but normal and, it appears, that the defendant had advertised itself as being able to handle the same under the existing circumstances. When the shipment was taken on at Tabor City, N.C., the defendant had full notice of the nature of the shipment and its duty to handle the same with reasonable dispatch. The defendant, also, had full knowledge of the nature of the shipment and its duty in handling the same at the time diversions instructions were given to it by Mr. Garrell at Tabor City, N.C., which instructions were issued at 1:50 p. m. on June 1, 1935, and there is testimony tending to show that said instructions were received by the defendant at Petersburg at 2:13 p. m. on said date, June 1, 1935, and transmitted by the defendant at 2:23 by telephone to what is known as Collier Yard at that point, at which place plaintiffs' car of beans had been standing since 1:55 a. m., May 31, 1935. In this connection I call attention to the fact that there was proof introduced that the plaintiffs had been shipping perishable goods and making diversions in this manner for a considerable length of time and the defendant had knowledge of this fact. Some of the testimony tended to show that shipments of this nature had been handled by the plaintiffs for ten or fifteen years, diversions having been made often. It is the appellant's contention that there was delay in getting the shipment off because of the shipment having to be reiced and considerable time being required for this purpose. It is, also, the contention of the appellant that many shipments were coming in and that greatly interfered with transportation. It is the contention of the respondents that the shipments being handled by the defendant were no more than the defendant should have expected and no more than the defendant should have been able to handle speedily and with promptness. As to the reicing of the car in question it is the contention of the respondents that that did not require any delay in transporting the car. Under all the facts and circumstances appearing in the case, it was a question of fact for the jury to say whether there was any unreasonable delay at the hands of the defendant in making said shipment after the notice of diversion was received. There was testimony tending to show that shipments made on diversion had been accustomed to be made in the time contended for by the respondents. Did the appellant perform its full duty in making the said shipment and transporting the said car to the point in question, that is, to Boston, Massachusetts? According to some of the testimony introduced in the case on behalf of the plaintiffs the said car should have arrived at Boston in time for the market on the morning of June 3rd and not June 4th, when it did arrive. There was some testimony from which such inference could reasonably be drawn, considering all the facts and circumstances under which the shipment was made. Whether the appellant should have, under the facts and circumstances surrounding the shipment gotten the shipment off earlier from Petersburg so as to have arrived in time for the market on the 3rd of June, was a question of fact for the jury. I may state, in this connection, that there was some testimony from which it may be inferred that shipments of the nature of the shipment involved had been transported within that time. It is the contention of the appellant that the shipment could not be made earlier for the reason that the defendant would have had to have given the same priority and in violation of the federal law. Of course, the defendant could not be expected to get the shipment off for the plaintiffs in a manner that would be in violation of the federal law, but whether the defendant transported the shipment in question as soon as reasonable, under the circumstances and conditions surrounding the case, or whether it neglected to do this was a question of fact for the jury.

As I view this case, it is governed by the principles in the case of Sanders v. Charleston Western Carolina RailwayCompany, 143 S.C. 395, 141 S.E., 607. It is true, one of the questions involved in the Sanders case arose in connection with the testimony that the defendant had a "hot box" to contend with, whereas in the case at bar no "hot box" is involved, but in the case at bar there was testimony raising questions as to whether or not the defendant exercised the proper care and precaution in reicing the car in question so as to be ready for shipment, and in getting the car dispatched for the said place of destination, Boston, Mass., in time for the market on June 3, 1935.

This opinion, written as a dissent, being concurred in by a majority of the Justices, becomes the opinion of the Court.

All exceptions are overruled, and the judgment of the Court below is affirmed.

MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.

MR. JUSTICE BONHAM dissents.