Norris v. Savannah, Florida & Western Railway Co.

Mr. Justice Raney delivered the opinion of the court:: The appellant, who was plaintiff in the Circuit Court, delivered to the appellee at Jacksonville, in this State,. February 2d, 1884, three hundred and one boxes of oranges-destined for Cincinnati, Ohio, and consigned to the Grange-Supply Company. The oranges did not reach Cincinnati; till the fifteenth day of the month, on which day, or on that and the next day, they were delivered to the consignee, b.ut in a condition of such decay that only about eighty boxes-could be used or sold. The appellant sued the railroad — 188 — ■company and there was a trial by jury, resulting in a ver■dic.t and judgment for the latter. The only question we shall consider is whether the loss sustained by the appellant is attributable to the act of God. The defendant company’s section of the railroad route •over which the oranges were transported extends from Jacksonville, Fla., to Jesup, in Georgia, where it connects with the road of the East Tennessee, Virginia and Georgia R. R. Company, extending to Chattanooga, Tennessee, from which point the road operated by the Cincinnati, blew Orleans and Texas Pacific Railway Company, completes the route to Cincinnati. The oranges reached Jesup between two and three o’clock A. M. of February 3d, where they were delivered to the E. T., V. & Ga. Company at about three o’clock, and they left there the same morning about 7 ■o’clock by passenger train for Chattanooga, where they were received on the 5th of' the month by the C., FT. 0. & T. P. Ry. Company. They reached Ludlow, a station on the latter road, one mile south from Cincinnati, and 335 miles north from Chattanooga on the next day, but the precise time of the day cannot, the record states, be given because •of the loss or destruction of the railroad company’s records. They did not reach Cincinnati however until the 15th day of the month. They were shipped at Jacksonville in a through car for Cincinnati, which car was billed as such, .and “ sealed with Jacksonville seals,” and in this car they remained till taken from it for delivery to the consignees in Cincinnati, it not having been opened until about the time of such delivery. The route the oranges were transported over was the most direct railway route between Jacksonville and Cincinnati, and the time usually taken in transporting a through car over it is “four or five days,” or “ about five days,” and from Chattanooga to Cincinnati — 189 — the time is from 22 to 24 hours. There was no unusual delay, but the car came through on time, until it reached Ludlow, where it remained from the 6th to the 15th of February. This detention at Ludlow was occasioned by a flood in the Ohio river which obstructed entrance into Cincinnati,, and early in the morning of February 6th washed out and destroyed a large portion of the Cincinnati end of the railroad bridge over the river, or the trestle at such end, it being under from 8 to 20 feet of water, and prevented any repair of it until the 24th day of the month, when business was resumed over the bridge. This break could not be repaired so that engines could pass over it till the 24th. The-water rose to an unprecedented height, so high as to stop-all transit of trains, it rising over 74 feet, and not subsiding-till the 24th, so that the passage of trains could be resumed. Trains can be run if the water does not rise higher than 58 feet. The flood was the highest ever known, was very destructive to property, and completely obstructed all access, to the city by rail frqm the south and from the north, except by one small narrow-gauge road. It submerged a. large portion of the business part of the city, through which-the railroads run, including the road of the C., N. 0. & T. P. Company. The Ohio river has never risen so as to obstruct travel over the C., N. 0. & T. P. Company’s bridge,, except two or three times ; once, it may be, in 1882, once in 1883, and in the instance stated in 1884, the rise in each succeeding year being higher than before. The bridge is-iron and of good quality, and the road way over it is one hundred and ten feet above low water mark. The water rose between the 5th and 15th “to 74 feet and some inches.” The river is subject to the same variations as any other river, and is rising and falling at all seasons of the year, but not such rises as those of 1882,1883 and 1884. — 190 — ‘The bridge has not been changed, and a similar rise in the river would occasion the same detention on the road and .■all other roads to Cincinnati. One witness says it was absolutely impossible to deliver the oranges across the river from Ludlow by boats; that men could not have been hired •for $300, or any sum, to undertake the risk of carrying freight across in boats ; that it would have been very dangerous, on account of the high water and swift current, and that there was no landing on the Ludlow side for boats. The car was taken from Ludlow as soon' as it was possible to do so, and it was the first car of freight taken over the bridge from Ludlow and delivered to any point in Cincinnati. The C., IST. 0. & T. P. Co., to render delivery of freight possible, built a platform at the approach to the bridge, where the trestle was washed away, by February -5th, which, according to the testimony, was the earliest possible moment at which it could have been completed, .and had the car brought over the bridge to this platform at once. At this time the car could not have been taken by theregularline of road into the city of Cincinnati, as there was from ten to twenty feet of water over the two miles of track necessary to be traversed. The railroad company hired boats to deliver the oranges on dry land to the consignees, who had wagons ready to receive them. These boats, through means, of which the delivery was effected, were rough scows or barges which were filled with the oranges and poled through the streets near to high ground on Richmond street, and there the oranges were delivered to teams which were drawn out into the waters to receive them. . The testimony shows that some other oranges were delivered in the city soon after the sixth of February, but that they were brought over the bridge before the fifth and an — 191 — terior to the wash-out, and the delay in their delivery was attributable to the confusion incident to the flood. An extraordinary flood, such as that of 1884, described in the testimony, is the act of God, and injury caused to the appellant by it solely is not a ground of action against the common carrier. Where the happening of the injury has been contributed to by the carrier, or would not have resulted from the act of God but for the carrier’s negligence or departure from the line of his duty, he is not protected. What is such a contribution to the injury or such negligence or departure from duty by the carrier as will deprive him of the protection which the act of God would otherwise give him, is a point upon which there is a conflict of authority. Erom the evidence in this case we can see no negligence or departure from duty by the appellee contributing to the occurrence of the inj urv. There was no delaj'- in transporting the oranges till they reached Ludlow, where they were detained by the flood, and it is clear that they were delivered to the consignees at their place of destination just as soon as the subsidence of the waters would permit an active diligence to deliver. The only grounds upon which negligence appears to have been alleged in the Circuit Court, or is charged here, are: 1st, that as there had been risings of the Ohio river before the one pleaded, it was “ the duty of the railroad company to have used reasonable diligence and care in protecting the goods from decaj' by providing against such emergencies, either by constructing its road to meet the same or by providing other means of transportation across said river,” to avoid the detention. 2d, that it was the duty of the company to have notified the plaintiff or the consignee of the detention of the oranges at Ludlow on their arrival there, and having failed to do so, it is not released by the flood from liability. We do not think the rises of the Ohio in — 192 — 1882 and 1883 deprive the rise of 1884 of its character as an act of God, or required the.appellee to have reconstructed its road or provided other means of transportation across the river, to meet such emergency. The testimony shows that up to the time the witnesses in the case testified these rises were wholly unprecedented. The mere omission to give the notice indicated by the second charge of negligence does not render the appellee liable. Whether or not a storing of the- fi’eight and notification thereof to the owner will relieve a common carrier from his liability as such, pending the interruption, according to what is said arguendo by Judge Dixon, in Conkey vs. M. & St. R. R. Co., 31 Wis., 637, (but is not a point decided in that case) we are not called upon to say. We have seen no authority to the effect that in case of a delay caused by the act of God a simple failure to notify the consignor or consignee of the detention is, of itself, an act of negligence, rendering the carrier liable for the consequences of such delay. There is no contention that the oranges were not properly taken care of pending the interruption. Bennett vs. Bryan & Co., 38 Miss., 17; Hutchinson on Carriers, §268. Hor does the testimony show even that had such notice been given the damage sustained by the plaintiff would have been lessened, or to what extent. What the plaintiff might have done, or what the result of his action upon the quantity of the damage would have been, cannot be assumed, even if it can be held that in such a case the damage sustained is attibutable to the mere failure to give notice. Upon the law and evidence in this case, the injury, in our opinion, is attributable to the act of God, and the judgment should be affirmed. Bud vs. Spaulding, 30 N. Y., 630 ; R. R. Co. vs. Reeves, 10 Wallace, 176 ; Maslin vs. — 193 — B. & O. R. R. Co., 14 W. Va., 180 ; Williams vs. Grant, 1 Conn., 487; Hall & Co. vs. Renfro, 3 Met., (Ky.) 50 ; Redfield on Railways, vol. 2, p. 6; Friend vs. Woods, .6 Gratt., 189. Judgment affirmed.