Whittle v. Southern Ry.

The opinion of the Court was. delivered by Mr. Justice Gary. This is an action for damages, alleged to have 'been sustained by the plaintiff, through the negligence of the defendant. , The allegations of the complaint, material to the questions, presented by the exceptions, are thus set out in the third and fourth paragraphs: 3d. “That upon the 16th day of July, A. D. 1906, plaintiff delivered a carload of four hundred (400) crates of cantaloupes, to the defendant at Blackville, in said county and State, to be loaded into one of the defendant’s said cars, of said special construction, and the said cantaloupes were loaded in said car, and received by the defendant for transportation, to Kammerer Bros. Co., Pittsburg, Pa., to be handled for sale by said Kammerer Bros. Co. for this plaintiff. 4-th. “That said defendant transported said carload of melons, to what is known as the Ainsworths’ Siding, on the morning of the 20th, but the said defendant did not comply with its duty, as a common carrier, by reason of its failure to place the said car in the produce yard, the place of delivery, until Sunday morning, the 22d of July, 1906; whereupon, on the following day, Monday, the fruit had become ruined, utterly valueless and was rejected; whereas if it *177 had been delivered on the 20th, or the 21st, the cantaloupes would have been marketable and in good condition, and worth at the then price, the sum of five hundred dollars; but by reason of said unreasonable delay, they were compelled to be rejected by said consignee, and resulted in a loss to this plaintiff, in the sum of five hundred dollars.” The defendant denied each and every allegation of the complaint, and set up the following defense: “This defendant alleges, that if it is liable at all, in consideration of the reduced rate allowed plaintiff, he agreed that the loss or damage, if any, would not exceed $250.00.” At the close of the plaintiff’s testimony, the defendant made a motion for a nonsuit, which was refused. At the close of all the testimony, the defendant made a motion for the direction of a verdict, which was also- refused. The jury rendered a verdict in favor of the plaintiff, for $187.50, and the defendant appealed upon exceptions, which will be reported. 1 Before proceeding to consider the exceptions upon the merits, we will determine, whether, under the pleadings, the defendant could, by motion for nonsuit or the direction of a verdict, take advantage of the fact, that the melons were transported from' Alexandria, Va., to Pittsburg, Pa. (where they were damaged), by the Washington Southern Railway Co. an independent carrier. The cause of action alleged in the complaint, is, that the defendant received the melons, under an agreement to transport and deliver them, to certain parties at Pittsburg, Pa., for the plaintiff’s benefit, and, that by its failure to deliver them, within a reasonable time, the melons were rendered worthless, and the plaintiff damaged in the sum demanded. In order for the plaintiff to sustain said cause of action, it was only necessary for him to prove, that the melons were received by the defendant, to be transported to their destination, and that the defendant failed to deliver them, within a reasonable time, whereby the plaintiff was *178 damaged. Jenkins v. Ry., 73 S. C. 389, 53 S. E. 480; Brunson v. Ry., 76 S. C. 9, 56 S. E. 538; Fleischman v. Ry., 76 S. C. 337, 56 S. E. 974; Heiden v. Ry., 84 S. C. 117, 65 S. E. 978; Code of Laws, section 3176. In order for the plaintiff to recover damages, it was not essential for him to prove, that the melons were transported over defendant’s own line, or that they were transported at all. Therefore, the fact that they were carried part of the way, by another line, did not tend to disprove any fact, which it was incumbent on the plaintiff to establish, so as to make out his case. As the fact just mentioned, did not tend to disprove any fact, upon which the plaintiff relied, to make out his case, the defendant should have set it up, by way of defense. Heiden v. Ry., 84 S. C. 117, 65 S. E. 987. But even if it had been set up as a defense, it could not have availed the defendant, on a motion for nonsuit or the direction of a verdict. Copeland v. Assurance Co., 43 S. C. 26, 20 S. E. 754. 2 In addition to the provisions of the bill of lading, that the carrier “agrees to carry (the articles) to their destination, if over its own road, or otherwise to deliver to another carrier,” and, that “no carrier shall be liable for loss or damage, not occurring on its portion of the route,” we desire to call attention to the following provision: “The shipper may elect to accept the conditions, printed on the face and back hereof, and the reduced rates applying thereunder, or may, as provided below, require the carriage of the property, at carrier’s liability. “If the shipper elects not -to accept the said reduced rates and conditions, he should so notify the ágent of the receiving carrier, in writing, and at the time his property is offered for shipment, and if he does not give such notice, it will be understood, that he desires the property carried, subject to the standard bill of lading conditions, in order to secure *179 the reduced rates thereon. Property carried, not subject to the conditions of the standard bill of lading, will be at the carrier’s liability, limited only as provided by common law, and by the laws of the United States and of the several States, in so far as they apply. Property thus carried will be charged twenty (20) per cent, higher, (subject to a minimum increase of one cent (1) per hundred pounds), than if shipped subject to the conditions of the standard bill of lading.” There was no direct testimony tending to show, that the plaintiff made an election under said provision, but there was quite an amount of testimony explanatory thereof, which was properly submitted to the jury. This disposes of the 1st, 2d, 3d, 6th, 7th and 10th exceptions. The fourth exception cannot be sustained, for the reason that testimony, as to the icing of the car, was relevant, as tending to show the condition of the melons, and that the time within which they were delivered, was unreasonable. The fifth exception was not argued, and, therefore, will not be considered. Lastly we proceed to the consideration of the eighth and ninth exceptions. 3 Section 2176 of the Code of Laws provides that, “in case of the loss of, or damage to any article or articles, delivered to any railroad corporation for transportation, over its own and connecting roads, the initial corporation first receiving the same, shall, in every case, be liable for such loss or damage, but may discharge itself from such liability, by the production of a receipt in writing, for the said article or articles, from the corporation, to whom it was its duty to deliver such article or articles, in the regular course of transportation.” The defendant introduced testimony to the effect, that it delivered the car containing the melons, to the -Washington Southern Railway Co. an independent and1 connecting *180 carrier, at Lexington Va., on the 18th of July, 1906. The case of Dunbar v. Ry., 62 S. C. 414, 40 S. E. 884, shows that the charge of his Honor the presiding Judge, embodied in the 8th exception, was erroneous. It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.