Gamble-Robinson Commission Co. v. Northern Pacific Railway Co.

JAGGARD, J. Plaintiff and appellant, a wholesale dealer in fruit, delivered at Wapato, Washington, certain fruit for transportation over defendant’s line to Minneapolis, Minnesota, for delivery to plaintiff. It was stipulated: The fruit arrived ten days thereafter. The schedule time of the train in which such shipments were ordinarily moved was seven days. If the fruit had arrived within that time, plaintiff would have received $512 more than a sale at the wholesale market value at Minneapolis would have produced on the day on which the shipment actually arrived. ' The only evidence offered in behalf of defendant was the bill of lading under which the shipments were made. The provision of that agreement here involved was as follows: “The corporation does not undertake to carry property by any particular train, nor in time for any particular market; nor will it be responsible for any loss or damage arising from delay, however occasioned, but will forward consignments with reasonable dispatch.” The trial court directed a verdict for the defendant. This appeal was taken from an order denying plaintiff’s motion for a new trial. We are of the opinion that the trial court was right. There was no direct evidence of negligence. It is only unreasonable delay, unexplained, which gives rise to a presumption of negligence. Elliott, Railroads, § 1482. In the case at bar the evidence fails to supply any standard of what is reasonable or usual dispatch. We take judicial notice of the facts that the distance between the points of shipment and of delivery was very great, and that the line of defendant’s road crossed three mountain ranges and four states. This knowledge would not justify a court in holding that ten days was an unreasonable time for the carriage of that freight unless some evidence was introduced. Nor would proof that the time which elapsed between the receipt of shipment for transportation and delivery to consignee at destination exceeded the time fixed by schedule show negligence. No testimony to which our attention has been called was in fact offered which showed [191] or tended to show that this train or any other train had ever in fact made its schedule time between these points, or that there was any known instance of a shipment having been carried and delivered in less than the ten days which were consumed in carrying and delivering the shipment in question. Plaintiff expressly assented to the provision of the contract that the corporation did not undertake to carry the property by any particular train, and did not undertake to show that, as a matter of fact, the shipments were put upon the first train leaving Washington, or that any demand thereunto was made, or that the train which carried them took more than the schedule time. It is to be noted in this connection, as the trial court pointed out, that the present case does not involve a deterioration in condition, which, perhaps, might affect the conclusion, if the damages sought to be recovered were based upon the depreciation in the quality of the fruit due to delay. It would have been an obvious perversion of the dictates of -simple justice for the trial court under the circumstances to have submitted to the jury the question of defendant’s negligence. The authorities to which defendant refers us we have examined and considered. That they sustain some positions for which they are cited is as clear as it is certain that they wholly fail to hold that a common carrier may not make a valid contract whereby it refuses to undertake to carry property by any particular train and to forward consignments with reasonable dispatch. These provisions of the contract only are here involved. The agreements that the carrier does not undertake to carry property in time for any particular market, and that it will not be responsible for any damages or loss arising from delay whether valid or not (see Baltimore & O. S. Ry. Co. v. Voight, 176 U. S. 498, 502, 20 Sup. Ct. 385, 44 L. Ed. 560; 21 Harvard L. Rev. 32), are not material here. Defendant’s authorities sustain the positions that a carrier is not responsible for negligence if it transports goods consigned to it for carriage to the point of destination within a reasonable time (Ormsby v. U. P. R. Co. (C. C.) 4 Fed. 706; Illinois v. Cobb, 72 Ill. 148; Bosley v. Baltimore, 54 W. Va. 563, 46 S. E. 613, 66 L. R. A. 871; Berje v. Texas, 37 La. An. 468), and that the valid portions of this contract are enforceable (Ormsby v. U. P. R. Co., supra) [192] The plaintiff, we conclude, did not bear the burden of proof of showing that his goods had not been transported with reasonable dispatch under the circumstances. Affirmed.