Northern Industrial Chemical Co. v. Director General of Railroads

DeCourcy, J. The plaintiff, purchaser of a carload of castor oil, brought this action to recover damages to the shipment while it was in transit from Seattle, Washington, to West Barrington, Rhode Island, where it arrived on September 16, 1918, in a leaky condition. The declaration is in three counts, for one and the same cause of action. The first is against the Director General, based on his operation of the New York, New Haven and Hartford Railroad, the terminal carrier. The second and third in substance are against the United States Railroad Administration on the theory that there was but a single common carrier from the shipping'point to the place of delivery. The jury returned a verdict for the plaintiff on the first count in the sum of $3,380, and in the same amount on counts 2 and 3. The defendant’s exceptions are to the refusal of the trial judge to direct verdicts in his favor, and to give certain requested rulings; to the admission and exclusion of testimony; and to certain portions of the charge. 1. The separate verdict for the plaintiff on the first count, especially in view of the instructions of the court, fixes the injury as occurring on the New York, New Haven and Hartford, the terminal road. Accordingly the question of directing a verdict on counts 2 and 3 has become moot; and it is unnecessary to consider whether the federal control resulted in merging the several railroad systems into a single common carrier unit, or whether they were operated as separate and distinct entities. And see Davis v. Donovan, 265 U. S. 257. As to the first count: There was evidence from which it could be found that the one hundred barrels, in which the oil was sent, were proper containers for oil shipments; that the barrels when loaded were in fit condition, were properly dunnaged or braced in the car, and passed upon by the checker of the railroad company; and that a “ clean bill of lading ” was issued, reciting that the goods were in “ apparent good order.” On arrival at West Barrington, according to — 254 — the evidence, two of the barrels had broken heads and- seven were in pieces “ with the stoves busted,” — these nine barrels being empty: the dunnage, or bracing and wooden supports, was broken down; and there was oil on and underneath the car. There was affirmative evidence, in addition to the presumption, that the serious harm occurred on the lines of the terminal carrier. Moore v. New York, New Haven & Hartford Railroad, 173 Mass. 335. Cote v. New York, New Haven & Hartford Railroad, 182 Mass. 290. Bullock v. Haverhill & Boston Dispatch Co. 187 Mass. 91. Shapiro v. Boston & Maine Railroad, 213 Mass. 70. The burden was on the defendant to show that the cause of the loss was something for which he was not responsible, Hastings v. Pepper, 11 Pick. 41, L. L. Cohen & Co. Inc. v. Director General of Railroads, 247 Mass. 259. He did offer testimony tending to show that some oil leakage was observed at Spaulding, Illinois, East Buffalo, New York, and West Springfield, Massachusetts. But under the established rule of Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, the jury could reject or accept that testimony. Even if they believed it in whole or in part, the employees on the New Haven road, after being notified of the leaks by the notations on the way bill, accepted the shipment from tfie preceding carrier, and should have taken all necessary precautions to prevent further damage from there on. In short, as the plaintiff had established the common law presumption against the terminal carrier, and the burden was on the defendant to show facts that would relieve him from liability, on this record there was no error in the refusal of the trial judge to direct a verdict for the defendant on the first count. Hannibal Railroad v. Swift, 12 Wall. 262. Chicago & Northwestern Railway v. Whitnack Co. 258 U. S. 369. Atlantic Coast Line Railroad v. Rice, 169 Ala. 265. Paramore v. Western Railroad, 53 Ga. 383. Wabash Railroad v. Priddy, 179 Ind. 483. 2. Of the twenty-six rulings requested by the defendant, those numbered 5 and 6 were given, and the last seven are expressly waived. The others are not specifically argued, so we treat the subject matter thereof briefly. As regards — 255 — the quantity of oil shipped at Seattle, there was not only the record of the certified weighers, Core and Herbert, but the bill of lading acknowledging the receipt of forty-five thousand seven hundred seventy pounds of castor oil: the cars were scaled before leaving Seattle to obtain the transcontinental weight; and the way bill indicates that the shipment was weighed by the carrier and found to be forty-six thousand three hundred eighty pounds, or six hundred ten pounds greater than the plaintiff claimed. There was ample evidence that wooden barrels were suitable containers for oil shipments, and that they were properly dunnaged. As to requests 8, 9, 10, 12 and 13, dealing with the loss on lines other than the New Haven, as already stated the burden was on the defendant to prove that the damage was one for which he was not responsible. And the agreement of counsel that the amount of the verdict should be $3,380, if the jury should find for the plaintiff, rendered it unnecessary to determine what amount of leakage occurred on the connecting lines. The same is true, in addition to other grounds, of request 16.' An examination of all the requests discloses no reversible error in the failure to give them, so far as they were not given in substance in the charge. 3. There were numerous exceptions to evidence. We treat only those argued by the defendant, and not herein-before considered. The words “ clean bill of lading,” being a technical expression of the trade, it was not error to admit the testimony of experts to interpret the phrase. The same is true as to the absence of “ exceptions ” in the bill of lading. The witness Davis, dock foreman at Seattle, had made an affidavit at the time of the shipment, that he found the barrels in first class condition when loaded, and also properly dunnaged. Although he had no present recollection of these facts as stated in the affidavit, he testified that when he made the statements they were true. Later, on looking at the affidavit, he stated as a fact that the barrels were properly dunnaged. It seems to us that the affidavit itself was not admissible, although the testimony of the witness, that the statements therein as to the dunnage were, truthfully made when his recollection was refreshed, seems to come within — 256 — cases like Cumberland Glass Manuf. Co. v. Atteaux, 199 Mass. 426, and Gurley v. Springfield Street Railway, 206 Mass. 534. In any event, the testimony and affidavit were only cumulative evidence. The carrier was free to refuse this shipment if not satisfied with the condition of the lading; and having accepted it, and issued a clean bill of lading, it assumed the usual obligations of a carrier. L. L. Cohen & Co., Inc. v. Director General of Railroads, supra. In other words, even assuming that there was error in admitting the affidavit, or the testimony relating to its contents,, it did not affect the substantial rights of the defendant. G. L. c. 231, § 132. Batchelder v. Home National Bank of Milford, 218 Mass. 420. Noyes v. Noyes, 224 Mass. 125. Duggan v. Bay StateStreet Railway, 230 Mass. 370, 383. The testimony offered by the defendant, that in 1923 the practice was to use metal containers, and that they were considered better than wood, was properly excluded, in some instances, because the witnesses were not qualified as .experts to the satisfaction of the trial judge. And generally, the shipment in question was in July, 1918; it was accepted by the defendant in wooden barrels, loaded as they were in tiers. Indeed it was in evidence that during the War period the railroad administration requested loading to capacity, or double loading. Finally, it is to be borne in mind that the plaintiff, as purchaser of a negotiable bill of lading, had a right to rely on the recital therein that the shipment was received “ in apparent good order.” An examination of the entire record discloses no reversible error in the admission or exclusion of evidence. Exceptions overruled.