Kuney v. Chicago & Northwestern Railway Co.

The following opinion was filed March 11, 1924: Crownhart, J. The issues as stated on appeal by the defendant are: (1) Assuming that the delivering carrier was negligent in its handling of the shipment after the potatoes arrived in New Orleans and during the continuation of its liability as a common carrier, then is there any evidence in the record upon which to measure plaintiff’s damages? (2) Was the delivering carrier negligent in its handling of the shipment after the potatoes arrived in New Orleans and during the continuation of its liability as a common carrier? (3) Does the judgment create a discrimination inhibited by federal law ? [573] It seems that potatoes shipped from the cold, midwinter climate of the north into the mild and humid atmosphere of New Orleans will immediately sweat upon being exposed to the air, unless the potatoes are piled in such a way as to give the same adequate ventilation. From this sweating the potatoes will very shortly begin to mould and deteriorate in quality. The defendant’s warehouse was merely an open shed, and the'potatoes, according to the evidence, were piled in a solid mass in this shed, so that there was no ventilation between the sacks. The potatoes arrived in New Orleans in first-class condition, but by the time the consignee was required to accept the potatoes they had become wet, mouldy, and unfit for seed. Upon these facts the jury predicated the negligence of the defendant, and we think properly so. Tim defendant must be held to knowledge of the proper method of handling and storing the commodity which it accepts for shipment. The jury found that the condition of the potatoes caused by the negligence of the defendant was the cause of the rejection of the shipment by the consignee. This finding was based upon the undisputed evidence. The jury further found that plaintiff’s damage amounted to $1,665.70. It is claimed by the defendant that this verdict was not based upon the evidence, and this is the really important assignment of error. It was claimed that the plaintiff did not notify the defendant that the potatoes were shipped under the contract for seed, and that is true unless the defendant can be held to have had notice by reason of the fact that the potatoes were shipped to the consignee, each sack being duly tagged and marked as seed potatoes. The defendant knew when unloading the potatoes in thé warehouse that they wei-e seed potatoes, and it is in evidence that seed potatoes commanded a higher market value than food stock. There is evidence in the record of the contract price, which is some evidence of value. Feelyater v. C., M. & St. P. R. Co. 178 Wis. 362, 190 N. W. 193. There is some evidence of the retail value of food potatoes, and there is evidence of the [574] market value of these particular potatoes for food by reason of their sale and of an offer of purchase made to plaintiff. This evidence, it is true, is not very satisfactory as to the market value on January 5 th, but it is all the evidence that is in the record on that subject, and we think it.sufficient to take the question to the jury. The jury found the market value as less than the contract price, and hence did not consider the contract price as the only evidence of the measure of damages. There are no exceptions to the judge’s charge. We find nothing in the federal law that prohibits recovery under the facts of this case. By the Court. — The judgment of the circuit court is affirmed. A motion for a rehearing was denied, with $25 costs, on May 6, 1924.