Wenzel v. Great Northern Railway Co.

ViNjB, J. Whether the complaint sets out a cause of action for damages for the breach of a specific contract to furnish plaintiff a live-poultry car at Cavalier, North Dakota, on November Y, 1910, or a cause of action for damages for breach of a carrier’s duty to exercise ordinary diligence in ordering the car and forwarding it to the place specified, is a question of some doubt. It need not, however, be solved, for the evidence is insufficient to sustain the former. It seems the case was tried to the jury on the theory that defendant had breached its duty as a carrier to use reasonable diligence in furnishing the car, and the court made findings covering both causes of action, and found not only a special agreement to furnish it, but also that it negligently failed to provide it within a reasonable time after it was ordered, — the latter finding being in direct conflict with the answer of the jury to the first question of the pecial verdict. It appears from the evidence that on October 20, 1910, Peter Eox & Sons Company, of Chicago, sent the following message to the defendant’s agent at Cavalier: “Order quick live-poultry car to be loaded in your town to be shipped to Chicago over Soo line.” Defendant did not own live-poultry cars and had to secure the same from a private line company. It placed the order for it October -21st and secured it at St. Paul October 25th. The car was then sent forward, [422] but met with an accident at Grand Forks on the 27th and had to be sent back for repairs to the shops at St. Cloud, a distance of 245 miles from Grand Forks. It did not reach Cavalier till November 11th. The plaintiff himself personally also requested a live-poultry car from the agent at Cavalier on the 21st of October and said he wanted it the 3d or 5th of November in order to get it in shape for loading on the 7th. On the 5th he again saw the agent and claims he was promised the car for Monday the 7th. This is substantially the evidence relating to how and when the car was ordered and furnished. It shows the defendant used reasonable diligence in placing the order for a car, in securing and forwarding it, and that but for the accident to the car in the yard at Grand Forks on the 27th it would have reached Cavalier, distant about seventy-four miles from Grand Forks, in a day or two thereafter, in 'ample time for use on the 7th of November. The answers of the jury to the first four questions are therefore not only sustained by the evidence, but are based upon practically the undisputed evidence. No evidence was introduced to show what the law of North Dakota was or is as to the duties of a common carrier to furnish ears upon request or otherwise, so we must presume it to be the same as the law of our own state. State Bank v. Pease, 153 Wis. 9, 139 N. W. 767, decided January 28, 1913. Sec. 1797 — 10, Stats. 1911, is substantially the same as sec. 1798, R. S. 1878, construed in the case of Richardson v. C. & N. W. R. Co. 61 Wis. 596, 21 N. W. 49, and it provides: “Every railroad shall, when within its powers so to do and upon reasonable notice, furnish suitable cars to any and all persons who may apply therefor for the transportation of any and all kinds of freight in carload lots and shall use reasonable diligence in moving freight and making delivery thereof.” It was held in the Richardson Case that it was not sufficient to show that reasonable notice was given; but it must [423] also appear that it was within the power of the railroad to furnish the ear at the required time and place before liability for failure to furnish it could attach. Here the defendant has shown that it was beyond its power to furnish the car in time owing to an unavoidable accident, and the jury has so found. Its liability, therefore, growing out of its statutory duty is negatived by the verdict. The defendant objected to the submission of question 5, which was as follows: “Did the railway company, after knowledge on its part that the delivery of the car at Cavalier would be delayed by the repairs, seasonably notify plaintiff of such fact ?” It is not quite clear what is meant by the question. If by seasonable notification is meant notice given to the plaintiff in time to enable him to protect himself against the delay, then the answer is sustained by the evidence, and is in fact the same as the answer to the next question. If the question is meant to determine the fact whether or not the defendant, after it learned of the extent of the delay to the car owing to its injury at Grand Eorks, exercised reasonable diligence in notifying plaintiff of the delay, then the answer thereto is contrary to the* undisputed evidence. Defendant’s agent at Cavalier testified that on Sunday, the 6th, he received notice that there would be a further delay in the arrival of the car from the shops; that he immediately made inquiry for the plaintiff, went twice to the hotel at which he stopped, but failed to find him, and was informed that plaintiff was out in the country somewhere. He then requested the clerk of the hotel to notify him as soon as he came in that the car would not arrive until Wednesday or later. This the clerk did when plaintiff returned Sunday evening. This is all the evidence on the subject of defendant’s failure to give the plaintiff notice after it had learned the extent of the delay. It was said in Ayres v. C. & N. W. R. Co. 71 Wis. 372, 382, 37 N. W. 432. that— [424] “Where a shipper applies to the proper agency of a railroad company engaged in the business of such common carrier of live-stock for such cars to be furnished at a time and station named, it becomes the duty of the company to inform the shipper within a reasonable time, if practicable, whether it is unable to so furnish, and if it fails to give such notice, and has induced the shipper to believe that the cars will be in readiness at the time and place named, and the shipper, relying upon such conduct of the carrier, is present with his live-stock at the time and place named, and finds no cars, there would seem to be no good reason why the company should not respond in damages.” It is evident from the testimony in the present case that not only did the defendant promptly seek to notify the plaintiff of the further delay, but that it was impracticable to get the notice to him sooner than was done. Under such circumstances the defendant discharged its full duty to plaintiff in that regard, and the answer of the jury to the question, if it be construed to find lack of diligence to notify plaintiff of the delay, must be set aside as not warranted by the evidence. If it means the notice was not in season to enable plaintiff to countermand the bringing in of the poultry, or to protect himself from loss otherwise, it determines no issuable fact. The evidence fails to show a special contract to furnish the car on the 7th of November. The most favorable construction that can be given it is that plaintiff seasonably requested a car for the 7th and that an assurance or promise was given him by the defendant that the car would be there on that date. Such request and promise did not constitute a special contract. Richardson v. C. & N. W. R. Co. 61 Wis. 596, 21 N. W. 49. In that case it was alleged in the complaint that the agent of the defendant promised, upon plaintiff’s request, to furnish a car on a certain date and that defendant failed to do so, to plaintiff’s damage. The court held upon demurrer that no special contract was alleged for the furnishing of the [425] ear on tbe specified date, and tbat if defendant was liable at all it was so under its liability as a common carrier, and tbat tbe cause of action was founded upon defendant’s failure to fumisb cars upon reasonable notice. Just wby tbe trial court made findings of fact is not evident. Tbe case was tried to tbe jury upon tbe proper theory, namely, tbe alleged breach of defendant’s duty to furnish tbe car upon reasonable notice. This issue tbe jury resolved in favor of the defendant. Tbe trial court refused to set aside or modify tbe verdict. Nothing, therefore, remained to be done but to award judgment to tbe party entitled thereto by tbe verdict, in this case tbe defendant. When tbe proper issues are determined by tbe jury there is no room for findings by tbe judge. Tbe court has power to set aside or modify tbe verdict, but if it lets tbe verdict stand, findings by tbe judge inconsistent with tbe verdict are nugatory. As before stated, tbe findings that defendant negligently failed to provide a live-poultry car at Cavalier for tbe plaintiff’s use on tbe 7th of November, as agreed, is contrary to both tbe verdict and tbe undisputed evidence, and cannot be invoked to sustain tbe judgment. Tbe other findings of a special contract to furnish tbe car on tbe 7tk are not supported by the evidence and will not sustain a judgment in plaintiff’s favor. So we must fall back on tbe verdict of tbe jury in determining tbe proper judgment to be entered. As before indicated, tbe defendant was entitled to judgment thereon. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for defendant upon tbe special verdict.