Van Eppes v. Atlantic Coast Line R. Co.

The opinion of the Court was delivered by Mr. ChiEE Justice Gary. This is an action for damages in which the plaintiffs allege that on the 29th of May, 1914, at Lake City, in the State of South Carolina, they delivered to the defendant 425 baskets of beans, consigned to the party therein named in the city of New York; that, by reason of negligence on the part of the defendant in transporting said shipment of beans to their destination, they were so delayed in carriage as to devolve upon plaintiffs a loss of $333.33; said shipment not having arrived at the point of destination until the 3d of June, 1914, a period of six days in transit. The defendant denied the allegations of negligence, and set up as a defense that it was agreed by the shippers that the *408 freight was not to be carried or delivered for or with reference to any specified time, but only with such reasonable dispatch with reference to other business of the carrier as the general business would permit; that the carriers should not be liable for any injury to or delay of fruits and vegetables or other perishable freight due to detention or delay occasioned by an accumulation of freight at any point, or to the breaking down of engine or cars, or to any other causes over which the carriers had no control; that the delay, if any, which occurred in delivering the fruit in question at destination was caused by an accumulation of freight at the point of destination, and by other causes over which the carriers had no control. The jury rendered a verdict in favor of the plaintiffs, but the amount thereof is not disclosed in the record. They, however, could not have found a verdict in favor of the plaintiffs for an amount exceeding $333.33, under the charge of his Honor, the presiding Judge. The defendant appealed upon exceptions, which will be reported. 1, 2 The first question we will consider is presented by the first exception, assigning error on the part of his Honor, the presiding Judge, in permitting the witness, D. M. Epps, to testify that plaintiffs notified defendant of the time the beans in question were to be sold. This question arose as follows: “Did you make the agent of the company at Dake City aware of the time they were to be sold in New York? (Objected to on the ground that the bill of lading introduced provided that the freight is not to be carried and delivered for or with reference to any particular market, or in any specified time in consideration of special arrangements and rate, and any testimony as to what market the' goods were bought for, in view of the contract between the parties, would not be relevant, or would not lay the foundation for any claim. ) *409 “Mr. Arrowsmith: Our position is not to establish any special contract, but to show notice to the carrier; to show that they knew the basis on which these beans were bought. “The Court: I will permit it. (Exception noted by defendant.)” It was not only necessary for the plaintiffs to show negligence arising out of an unreasonable delay, but that such negligence was the proximate cause of the damages. The testimony was competent on the ground that it tended .to prove an element of damages. In the case of N. Y., P. & N. Ry. v. Pen. Produce Exch., 240 U. S. 34, 36 Sup. Ct. 230, 60 L. Ed. —, the Court had under consideration the following question: “Was the plaintiff entitled to recover because its shipment failed to arrive in time for the market of May 28th, when the regulations under which the shipment moved were published in tariffs duly on file with the Interstate Commerce Commission, and specifically provided, ‘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, unless by specific agreement indorsed hereon?’ ” In disposing of that question the Court said: “As the Court of Appeals of Maryland said, the ground of the action was the failure to carry with reasonable dispatch, and the loss of marketability is- mentioned as the element of damage. That is, the reference to the market said to have been lost was merely for the purpose of calculating damages, which were sought solely because of lack of reasonable diligence, and not upon the allegation of any added duty with respect to a particular train or market. The stipulation invoked does not attempt to limit the duty of the carrier to transport with reasonable dispatch.” *410 This is conclusive of the question raised by this exception. 3 We next proceed to determine whether there was error on the part of his Honor, the Circuit Judge, in refusing to direct a verdict. The plaintiffs and the defendants both introduced testimony tending to show the circumstances under which the delay occurred. The question whether the carrier failed to transport with reasonable dispatch, raises an issue for the jury. Commins v. Railway, 78 S. C. 8, 58 S. E. 944. The rule is thus stated in 2 Enc. of Raw (1st ed.) 841: “It has been said that what is a reasonable time is not susceptible of definition. The circumstances of the particular case must be adverted to. The.mode of conveyance, the distance, the nature of the goods, the season of the year, the character of the weather, and the ordinary facilities of transportation are to be considered in determining whether in the particular case there has been any unreasonable delay. The character of the freight, whether ordinary merchandise, such as iron, wool, cotton, grain, etc., or whether perishable goods, such as live stock, fish, oysters, fruit, vegetables, etc., must be considered because in the first case their character would not suggest probable damage from delay, whereas in the second it would. The season of the year is also to be considered, because the delay at one time might be harmless, whereas at another it would do serious injury. The question as to the carrier’s-diligence and a reasonable time is for the jury.” The testimony was susceptible of more than one inference. Therefore the Circuit Judge could not háve directed a verdict without invading the province of the jury. 4 The fourth exception raises the question whether the initial carrier is responsible for the negligence of a connecting carrier. In the case of N. Y., P. & N. Ry. v. Pen. Produce Exch., 240 U. S. 34, 36 Sup. Ct. 230, 60 R. Ed. —, the Court was *411 called upon to decide the question whether the Carmack Amendment imposes on the initial carrier liability for delay occurring on the line of its connection without physical damage to the property. The Court used this language: “It is said that there is a different responsibility on the part of the carrier with respect to delay from that which exists where there is a failure to carry safely. But the difference is with respect to the measure of the carrier’s obligation; the duty to transport with reasonable dispatch is none the less an integral part of the normal undertaking of the carrier. And we can gather no intent to unify only a portion of the carrier’s responsibility.” See Piero v. Southern Exp. Co., 103 S. C. 467, 88 S. E. 269. See, also, A. C. L. Ry. v. Glenn, 239 U. S. 388, 36 Sup. Ct. 154, 60 E. Ed. — .* 5 The fifth exception assigns error in the ruling that mere delay tended to show negligence. This is not the proper inference to be drawn from the charge when considered in its entirety. The presiding Judge charged that: “If a shipper comes into Court and proves by the greater weight of the evidence that there was an unreasonable delay in the delivery of his goods at the point of contract destination, that itself is prima facie evidence of negligence — that is, some evidence of negligence — and it must be overcome by the carrier, if he would escape responsibility by the greater weight of the evidence in the case. * * * “I charge you in this case that the plaintiffs have come into Court predicating their cause of action on negligence of the defendant,'or one of its connecting lines, and the burden of proving that allegation by the greater weight of the evidence is upon them, because they have alleged it; but if they have proved to your satisfaction, by the greater weight of the evidence, that there was an unreasonable delay, that the shipper suffered loss as a proximate result *412 of that unreasonable delay, unless the defendant has come into Court and shown by the greater weight of the evidence that that delay was not caused on its part by any negligence, or any negligence of its connecting lines, you will find for the plaintiffs.” In this there was no prejudicial error. It is the judgment of this Court that the judgment of the Circuit Court be affirmed. Messrs. Justices Eraser and Gage concur in the opinion of the Court. Footnotes [1] Footnote. — As to relief from award, see notes in 47 L. R. A. (N. S.) 445. As to qualifications and characteristics of arbiters, see notes in 47 L. R. A. (N. S.) 340. As to concurrent jurisdiction at law and in equity in cases of fraud, see 3 A. & E. Ann. Cas. 611, 13 A. & E. Ann. Cas. 756, 43 L. R. A. (N. S.) 924, 48 L. R. A. (N. S.) 265.