L. J. Upton & Co. v. Reeve

SlMS, J., after making the foregoing statement, delivered the following opinion of the court: No authorities are cited either for plaintiff or defendant. 1. Of course, the condition of the onion sets at Chicago at the time of their shipment was in issue in the case before us, and not their condition at Norfolk, save in so far as the latter was proper evidence of their prior condition at Chicago. Further: It will be observed, from a consideration of the statement preceding this opinion, that the evidence in the case bears upon two aspects of the condition Of the onion sets on their arrival at Norfolk, (1) one aspect having reference to their rotten and rotting condition, and the failure of the onion sets to germinate, which may or may not have been brought about by improper refrigeration, or lack of refrigeration of the car containing the shipment in transit, or by the delay in transit, or by the condition in which the onion sets were [248] at the time of shipment, although measuring up to the 'eon- . tract specifications; and (2) the other aspect having reference to more permanent features of and circumstances with respect to the condition of the onion sets, which, if present when they arrived at Norfolk, indicated, in the nature of ■ things, in accordance with natural laws, that the same condition existed when the onion sets were put on board the car at Chicago; as for example, the size of the onions and the amount of dirt and trash with them, tending to show that they had never been passed through a 7/8-inch mesh sieve. With respect to the first aspect of.the evidence: If we take the most favorable view of it for defendant, such evidence leaves it equally probable that such condition may have been due to the negligence of the transportation company or the natural tendency to decay, due to the onion sets having been grown in a wet season, and not to their not having been in the condition the contract stipulated that they should be at the time of shipment. For the last named default only could the plaintiff be held responsible. He did ' not warrant the keeping quality of the onion sets, or that they would germinate, nor was he responsible for any injury resulting from negligence of the carrier. Since the evidence left it equally probable that the defective condition complained of by defendant was as likely due to other causes for which the plaintiff was not responsible, as to a cause for which he was responsible, under a well established rule of law, there was no evidence to support a verdict of the jury in favor of the defendant on the first aspect of it, which we have under review. To that extent the mtruction complained of was correct. With respect to the second aspect of the evidence: There was evidence in the very condition of the onion sets on arrival at Norfolk, in the matters of size and the quantity of dirt and trash in them, tending to show that they had not [249] been “screened through (a) 7/8-inch mesh sieve” before shipment from Chicago, and, hence as to the non-screaming of the onion sets through such a sieve as there was evidence sufficient to go to the jury to be weighed and considered by them along with all the other' evidence in the case on the question of whether the onion sets had been screened before shipment as the contract required. The instruction complained of withdrew the evidence of such condition of the onion sets from the consideration of the jury, and to that extent the instruction was erroneous. And since the instruction went to that extent upon such a vital point of the issue made by the pleadings of the defendant, it appears from the record to- have been prejudicial to the defendant, and, hence, the giving of it was reversible error. 2. On the subject of the refusal of the trial court to allow an answer to be given to the hypothetical question set forth in the statement above, preceding this opinion: This is the sole remaining assignment of error for our consideration. That an affirmative answer would have been given to this question appears from the aforesaid statement. The question, however, was fatally defective in that it embraced both aspects of the evidence above adverted to and yet failed to include a statement of the maintenance of a proper condition of refrigeration and ventilation of the car containing the shipment while it was in transit from Chicago to Norfolk. Therefore, there was no error in the action of the court below in declining to allow ah answer to be given to the question. However, because of the error in giving the instruction aforesaid, we are of opinion to reverse the judgment complained of and grant to the defendant a new trial, which will be accordingly done, to be had not in conflict with the views expressed in this opinion. Reversed..