O. J. Barnes Co. v. Northern Pacific Railway Co.

BiRDZEim, J. This is an appeal from an order entered in the district court of Grand Forks county, granting a new trial. The action is one to recover damages alleged to have been occasioned by a delay in the shipment of a car load of potatoes from Grand Forks, North Dakota, to Vermillion, South Dakota, which delay is alleged to have subjected the potatoes to a low temperature, resulting in a considerable portion of them being frozen. It appears that the plaintiff placed a false bottom in the car and loaded it at Grand Forks on November 3, 1916. The car was a refrigerator car; the potatoes were contained in burlap sacks, and were so loaded as to leave an airspace between the inside of the car and the potatoes. The route traveled was from Grand Forks to St. Paul, a distance of 320 miles, and from St. Paul to Vermillion, a distance of about 375 miles. The car arrived at its destination on the afternoon of November 17, 1916, or some fourteen days after it was loaded. The evidence showed that the temperature was lowest during the- latter days of the transit. The shipment was made under what is termed option No. 1 of a tariff previously approved by the Interstate Commerce Commission and on file with it, and at the station of the Northern Pacific Railway Company at Grand Forks. Under this option the applicable tariff required the shipper to assume all responsibility for loss or damage due to cold or heat, not the direct result of the negligence of the carrier; and any warming of cars before loading was to be performed by the shipper at his own expense (the shipper was also required to provide *415 false flooring, stoves, fuel, etc.). The tariff directs carriers to refuse to accept shipments upon which may be noted directions to place the car in a roundhouse if the temperature goes below zero, or that the car must make schedule time. The case was submitted to a jury and a verdict returned for the defendant. A special question was also submitted, in response to which the jury found that nine days was the ordinary and usual time necessary to move a shipment from Grand Forks, North Dakota, to Vermillion, South Dakota. The plaintiff later moved for a judgment non obstante, and, in the event of a denial of this motion, for a new trial; The former motion was denied and the latter granted. In the order granting the new trial the trial court indicated that it was granted on the sole ground of an error committed in instructing the jury. The instruction deemed erroneous is as follows-: “You are instructed that the fact that these goods are perishable goods, so-called, does not impose upon the defendants any greater duty to see that these goods were transported promptly, or any more promptly than other goods. It is the duty of the railway company to transport all goods in a reasonably prompt manner, and no exception is made in the ease of perishable goods.” An instruction submitted by the plaintiff, which stated the carriers’ duties in different language, was refused. This instruction reads: “The jury is instructed that the law imposes upon a common carrier the duty of transporting goods from the place where received for shipment to their destination without unreasonable delay and as promptly as the ordinary course of traifle will permit, and that in determining what constitutes the transportation of the shipment in question within a reasonable time consideration should be given to the fact that the goods were of a perishable nature, and to the further fact that they were being transported during a season of the year when changing temperatures were to be anticipated.” A comparison of the two instructions, — that is, the one given and the one refused, leads to the conclusion that the one refused contains the more correct statement of the law, in that the duty of the carrier to transport without unreasonable delay under the particular circumstances is recognized, and reference is made to some of the circumstances which properly bear upon the question of reasonableness. It is certainly proper, in determining the reasonableness of the time consumed in shipping *416 any commodity, to consider, among other circumstances, the nature of the goods and their liability to be affected by variations of temperature. 4 E. O. L. § 207; 10 C. J. 286; 2 Hutchinson, Carr. 3d ■ed. § 652. In the instruction given, however, the jury was practically told that the perishable character of the goods was not to be considered as a circumstance in determining the reasonable time. This error was not corrected or cured in the remaining portion of the instruction, and we are of the opinion that the trial court properly recognized its ■error in granting the new trial. Counsel for the appellant argue, however, that, in shipping under option No. 1, it must be held that the shipper assumes all risk incident to heat and cold. If this contention be sound, the error, on account of which the new trial was given, would be error without prejudice. We do not agree with this construction of the option. Where the carrier negligently delays the shipment of a perishable commodity at a time of year when it is reasonable to anticipate that a delay will subject the commodity to a temperature that is apt to destroy it, and where such a result actually follows, the loss results from the negligent delay. In fact, the option itself implies that the •shipper does not assume the risk of the carrier’s negligence, for it ■does not attempt to excuse the carrier from liability for damage which is the direct result of the negligence. In our opinion, where the negligence is the proximate cause of the damage, the damage is, in the language of the option, the direct result of the negligence. But counsel contend that the destruction of the property, being due to the elements, is a loss through what is commonly termed “an act of God,” and that for losses so resulting no recovery may be had. But it is well settled that where loss due to changes in temperature occurs at a time when it is reasonable to anticipate such changes, the exemption is not applicable. 4 E. O. L. § 189. It is even held in some jurisdictions that the carrier is not exempted where, following a delay in their shipment, the goods are damaged by a so-called act of God which could not have been anticipated. See 4 E. O. L. § 194, and cases cited. We express no opinion as to the correctness of such a rule. For the foregoing reasons, the order appealed from is affirmed.