Gulf, Colorado & Santa Fe Railway Co. v. Gilbert

FISHER, Chief Justice. This is a suit by appellee against appellant,, for damages for delay in the transportation of certain gin machinery from Oswego, New York, to Brownwood, Texas. Verdict and judgment in favor of appellee for $180. The petition in this case charged the appellant and the other lines of road over which the goods were shipped as partners in the transportation of the goods from Oswego, New York, to Brownwood, Texas, which allegation of partnership was not denied under oath. The principal question in the case is whether or not the proper measure of damages was submitted to the jury by the trial court. As the measure of damages, the court submitted to the jury the rental value of said machinery during the time of the delay. Under the facts of this case, we think the evidence justified the court in submitting this as the proper measure of damages to the jury. The evidence shows that about the 16th of August, Ilurlburt, who was the agent of the appellee in shipping the goods, notified the appellant that the machinery was to be used for the purpose of ginning cotton for the fall season of that year, and requested the appellant to hurry up the shipment. It appears that the machinery was bought for the purpose of being run as a gin during the summer and fall of that year, and was intended to be put into immediate operation for the purpose of ginning cotton as soon as it would arrive. It appears from the testimony that *368 this machinery was shipped from Oswego about the 10th of August, and did not arrive in Brownwood, Texas, until about the 6th of September; and it further appears that a reasonable time for such shipment was about nine or ten days. Delivered June 7, 1893. The notification by Hurlburt to the appellant on the 16th of August of the importance of expediting the shipment and the purposes for which the machinery was intended to be used, put the appellant, it being a partner of the other shipping roads, upon contemplation and notice of the facts and the intended purpose for which the machinery would beused. In ordinary shipments to merchants of the class of goods in which they deal, where the carrier does not know, or the facts do not put him upon contemplation, of any intended special purpose for which the property was intended to be used, the measure of damages for delay is the difference between the value of the property at the time it did arrive and the time when it should have arrived; but in cases where the carrier is charged with a knowledge of the special purposes for which the shipper intends to use the property, then for delay in such cases he can be charged with any special damages resulting from such delay which, in the nature of things, was reasonably within the contemplation of the parties at the time of shipment. The loss resulting from the use of the property during such time, we think, is a proper item of damages in such cases. Allowing ten days as a reasonable time in which to transport the machinery from Oswego to Brownwood, the property should have arrived in Brownwood not later than August 26, it being within ten days after the time that I-Iulburt notified the appellant of the importance of the shipment on August 16; after the 26th of August, it appears that there was an unreasonable delay in the shipment from that time to September 6, the date of the arrival of the machinery at Brownwood. The weight of evidence in the case shows that the reasonable rental value of the machinery during the time of this delay was from $20 to $30 a day; place this value at the lowest amount, and it shows that the verdict of the jury was for a less amount than the appellee was entitled to. We think the appellee could properly maintain this suit, although by arrangement between him and Hulburt and Semple they had an interest in the subject matter of the suit. We have carefully considered all the remaining assignments of error, and decline to disturb the judgment of the court below. Judgment affirmed. Affirmed.