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permitted the state's attorney to introduce | 6. Carriers Om 132_Unexplained delay presumthe witness Wallace in rebuttal to testify ed negligent. that the property taken by the defendant was Where carrier fails to explain cause for worth $25. The defendant objected on the shipment of perishable freight consuming much ground that the evidence should have been more than usual time for transportation to introduced in chief, and it was not proper to destination, it will be presumed that delay was receive it in rebuttal. It is largely a matter negligent. within the discretion of the trial court to de- 7. Carriers www96_Carrier required to transtermine whether such evidence should be re port interstate shipment of perishable nurse ceived. The trial judge, in his discretion, ery stock within reasonable time to destina. may permit evidence in rebuttal which should tion. have been introduced in chief. Crosby v. Carrier is required to exercise diligence in Evans, 281 Mo. 202, 219 S. W. 948. The de transporting interstate shipment of perishable fendant was in no way harmed by the intro- nursery stock within reasonable time to desti

nation. duction of evidence of value in rebuttal instead of in chief, because he had ample op- 8. Carriers em 116–Mere delay of shipment portunity to meet it.

by carrier does not establish negligence. The judgment is affirmed.

Mere delay by carrier of a shipment does All concur.

not of itself establish negligence.
9. Carriers om 137 - Instructions held to set

forth constituent elements of negligent delay

by carrier, MOUNT ARBOR NURSERIES V. NEW Instructions in shipper's action against carYORK, C. & ST. L. R. CO. et al.

rier, for damages to nursery stock by freezing, (No. 18722.)

held to sufficiently set forth constituent ele

ments of negligent delay. (St. Louis Court of Appeals. Missouri. May 10. Negligence en 121(1)—Burden of proof 5, 1925.)

on party alleging negligence.

Burden of establishing negligence is on par1. Carriers om 177(1)-Connecting carrier held not liable for damage to nursery stock by ty who asserts it. freezing, not due to its delay,

II. Carriers 137 Instruction in action Connecting carrier held, not liable for dam

against carriers for damage to shipment held age to nursery stock by freezing, though ship properly refused as misleading. ment was delayed where freezing was proxi

In shipper's action for damage to nursery mate cause of damage, and would have occurred stock by freezing, instruction that burden of had there been no delay.

establishing carriers' negligence was on plain2. Commerce 8(12)—Shipment in interstate tiff, and that, unless jury found that carriers commerce governed by federal law applica

were negligent, verdict should be for them, ble.

and that mere proof of delay did not of itself

establish negligence, though abstractly correct, An interstate shipment is wholly governed held properly refused as being misleading under by federal law applicable.

evidence. 3. Commerce Cm8(13)-Liability of carrier for 12. Trial 251(3)-Instruction held properly

damage to interstate shipment governed by refused as attempting to raise a false issue. federal laws, contract, and common-law prin

In action against carriers for damage to ciples promulgated by federal courts.

nursery stock by freezing, instruction that Liability of carrier for damage to interstate plaintiff, by ordering box car in which to make shipment by freezing is governed by federal shipment, assumed risk of damage from freezlaws, contract between parties, and common- ing, and, as injury was caused by shipment belaw principles promulgated by federal courts. ing made in a box car, verdict should be for

carriers, held, properly refused as attempting 4. Carriers en 177(3)-Liability of initial car to raise a false issue, where cause of action

rier for damage to interstate shipment sub- was based on negligent delay. ject to Carmack Amendment. Liability of initial carrier for damage to 13. New trial Em 8-That court granted new

trial as to one of defendants held not to reinterstate shipment was subject to Carmack Amendment (U. S. Comp. St. 88 8601a, 8604aa),

quire granting of new trial as to other, making initial carrier responsible for loss on

where their liability was several. its own line or line of a connecting carrier.

In action against initial and connecting

carriers for damages to nursery stock by 5. Carriers om 136 - Whether nursery stock freezing, that court granted new trial as to

was negligently delayed by carrier, thereby one of defendants did not require it to grant subjecting to frost, held for jury.

new trial as to other; their liability being sep. In action against carrier for damage to eral. nursery stock by freezing, whether initial carrier negligently delayed shipment, thereby sub Appeal from Circuit Court, Marion County; jecting it to frost, held, for jury.

Charles T. Hays, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(273 S.W.) Action by the Mount Arbor Nurseries ļ the consignor ordered a box car to transport against the New York, Chicago & St. Louis the nursery stock, and made no request for Railroad Company, a corporation, and anoth-carriers' protective service or special service

Judgment for plaintiff, and defendants of any kind; that plaintiff's expert witness appeal. Judgment against first-named de- Cuneen testified such nursery stock could be fendant affirmed, and reversed as to other de shipped in a box car without damage by fendant.

freezing as late as November 12th; that othGlahn & Diemer, of Palmyra, for appellant ers testified for plaintiff that shipments could

start from Painesville in box cars for ShenNew York, C. & St, L. R. Co.

H. J. Nelson and J, G. Trimble, both of St. andoah as late as November 10th without Joseph, Glahn & Diemer, of Palmyra, and J. danger of damage by freezing; that a temA. Lydick, of St. Joseph, for appellant Chi- perature of 25 degrees above zero or lower

will damage nursery stock in box cars; that cago, B. & Q. R. Co.

Rendlen & White, of Hannibal, and F. D. this nursery stock had been packed in a cus-
Wilkins, of Louisiana, Mo., for respondent. Hoor of the car and placing trees thereon, and

tomary manner, first, by laying straw on the

placing material, consisting of a mixture of DAVIS, C. This is an action versus a car- straw and moss, on the roots of the trees, rier, for damages for negligent delay, where which was wet down by sprinkling with wain a carload of nursery stock was caused to ter, adding another layer of trees, and so confreeze. The jury returned a verdict in favor tinuing until the loading operation was comof plaintiff for $1,329.51 against the New pleted; that the nursery stock in this car was York, Chicago & St. Louis Railroad Company, perishable; that the distance over the route hereinafter called the Nickle Plate, of which of this shipment from Painesville to Chicago, amount plaintiff voluntarily remitted one 111., on the Nickle Plate is 369 miles, and from cent, and for $1,329.50 against the Chicago, Chicago to Shenandoah on the Burlington 462 Burlington & Quincy Railroad Company, miles, a total distance of 831 miles; that the hereinafter called the Burlington. On the ordinary, usual, and customary time for verdicts of the jury, the court rendered a transporting ordinary freight from Painesjoint judgment against both defendants in the ville to Shenandoah is from 4 to 5 days; sum of $1,329.50, from which each defend that it was agreed that the car was delivered ant appealed.

to the Burlington at Chicago on November 8, There were two trials of this case.

In the 1920, at 9:30 a.

The evidence further first trial the jury returned a verdict in favor tends to show that it took 11 days for this of plaintiff against both defendants. There car to travel 369 miles from Painesville to upon defendants filed their separate motions Chicago, and 6 days from Chicago to Shenanfor a new trial and in arrest of judgment. doah; that the reasonable time for transThe trial court awarded the Burlington a new porting freight from Painesville to Chicago trial, withholding the judgment upon the ver- is 2 days, and from Chicago to Shenandoah dict as to the Nickle Plate until such new 242 days; that, on the third morning afttrial was determined as to the Burlington. er the delivery of the car on October 26th, The second trial resulted in a verdict against plaintiff's shipping clerk called the agent the Burlington for $1,329.50. The verdict of the Burlington at Shenandoah, gave standing against the Nickle Plate was for him the number and routing of this car $1,329.51. After the Burlington's motion for of nursery stock, requesting a tracing; that a new trial as to the second trial was over- plaintiff made inquiry every day or so; that ruled, plaintiff entered a remittitur of one about 8 days after the car had been shipped cent from the verdict against the Nickle the shipping clerk again called the BurlingPlate, and the trial court thereupon entered ton regarding this car, telling him that the a joint judgment in favor of plaintiff and car should be at destination, and the agent against both defendants in the sum of $1,329.- replied that he had a line on the car—that 50.

it would be taken care of; that the shipment Plaintiff's evidence tends to show that on failed to arrive until about 6 days after this October 28, 1920, at Painesville, Ohio, Mark conversation; that plaintiff introduced in Welch, a nursery man, placed in Pennsylva- evidence a copy of a claim presented to denia car No. 511175, and delivered to the Nickle fendants, stating thereon, had it been delivPlate, trees and nursery stock in good condi-ered within the usual time of 8 to 12 days, it tion, sound and merchantable, consigned to would have escaped a cold wave, which plaintiff at Shenandoah, Iowa; that the trees struck about November 10th to 11th, at which and nursery stock were properly packed and time the damage was done. loaded in a box car according to the best Plaintiff's evidence further tended to show usage known in the nursery business for that the climatic conditions as prepared by the time of the year; that the stock was well United States Weather Bureau for various bedded and packed in straw; that the tem- points in Ohio, Indiana, Illinois, Iowa, and perature at Painesville, at the time of the Omaha, Neb., giving the maximum and minishipment as shown by the government weath- mum temperatures on each day from October er reports, was 42 degrees Fahrenheit; that / 28th to November 13th, inclusive; that the

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minimum temperature at Chicago on Novem-, vided alternative rates depending on the servber 10th was 27 degrees above zero, and No-ice to be rendered by defendant in respect to vember 11th, 18 degrees above, at Aurora, Ill., the protection of such shipments from damage November 11th, 20 above, at Peoria, Ill., No by frost and freezing; that the tariff filed vember 11th, 18 above, at Galva, Ill., Novem- with the Interstate Commerce Commission ber 10th and 11th, 20 above each day; Burl- provided alternative rates depending upon ington, Iowa, November 10th, 19 above, No- the service to be rendered by this defendant vember 11th, 23 above, Omaha, Neb., Novem- in respect to the protection of perishable comber 9th, high 47, low 20 above, November, modities from damage by freezing, etc., 10th, 17 above, November 11th, 14 above, No- known as “Carriers' Protective Service and vember 12th, 14 above, November 13th, 15 Shippers' Protective Service." This tariff above; that Shenandoah was about 53 miles provided that, by requesting and paying the east of Omaha.

charges, plaintiff could have protected the Plaintiff's witness Morse testified there was shipment from freezing, and further provided a cold spell at Shenandoah, Iowa, continu- that, upon failure to make a request for such ing from four days to a week, and starting service, the shipper would be deemed to have about five days before shipment arrived at elected to make its shipment under its own Shenandoah; that to the best of his knowl- protection and at its own risk of damage by edge the temperature was below 17 degrees freezing, with no obligation on defendant to above zero; that the ground was frozen be- furnish artificial heat. tween 4 and 5 inches, and that nursery stock The petition alleges in part: That the depacked as was this shipment could be trans- fendants did not take proper care of said ported in a box car at a temperature as low goods, wares, and merchandise, to wit, said as 25 degrees above zero without causing nursery stock, and did not safely keep, cardamage by freezing; that they will stand a ry, and deliver the same without delay, but teiaperature of 25 degrees; that when the on the contrary negligently and carelessly box car was ordered no request for protec- so delivered said shipment, and so negligently tion from damage by freezing was made. and carelessly performed their duties as com

The evidence further tends to show that mon carriers, that they permitted said shipthe nursery stock was more or less frozen ment of stock of merchandise to be delayed when received at Shenandoah, Iowa, and it for a long period of time over and beyond was agreed that the reasonable value was what was reasonably required to transport $1,226.11, and that the nursery stock was re said shipment from Painesville, Ohio, to ceived in the same car in which it was loaded Shenandoah, Iowa, to wit, for a space of at Painesville.

about 8 to 11 days more than was reasonably The evidence further tended to show by required to transport and carry said merother witnesses that nursery stock packed as chandise, and negligently and carelessly suf. this was would not freeze unless the tempera- fered said nursery stock to be and remain exture went below 18 to 20 degrees above zero, posed to cold and frost, and that by reason of and other evidence that it would freeze at 20 such negligent and careless delay in the degrees above zero; that practically all of transportation of said stock or merchandise the nursery stock was damaged, and part of the same was exposed to cold and frost, it was totally dead; that the box car con- which would not have occurred had said shiptained no stove or heater to protect the shipment been transported with reasonable disment; that shipping the nursery stock in a patch and due care, and that, by reason of box car was the proper method of shipping at such negligent delay on the part of the dethe time it was shipped ; that a box car load fendants and each of them, said nursery of dormant nursery stock could be safely stock became and was frozen, etc. shipped on November 1st from Painesville to Such further facts as are pertinent will apShenandoah, also on the 2d, 5th, and up to pear in the discussion of the questions raised. about November 10th; that dormant nursery [1] I. The Burlington contends the trial stock would freeze between 20 and 25 de court erred in refusing to direct the jury to grees above zero, depending on whether con- return a verdict in its favor. ditions and the way the wind blows.

Plaintiff's evidence tends to show that nursThe evidence for defendant Burlington ery stock, carried in an ordinary box car, tends to show that the Nurseries traced prac- and packed aš was this shipment, could, for tically every car (at Shenandoah) that was about a day, withstand a temperature not coming in at that time of the year; that it lower than 20 to 25 degrees above zero Fahintroduced in evidence a copy of a Perishable renheit, but so subjected for a longer period Protective Tariff No. 1, I. C. C. No. 6, with of time would freeze. Plaintiff's evidence furSupplements 4 and 5 thereto, duly certified ther tends to show that Shenandoah is about by the secretary of the Interstate Commerce | 53 miles east of Omaha; that at Omaha, so Commission, as having been in force and ef- the climatic report tends to show, on Novemfect during the time the shipment in question ber 9th, what may be called a cold wave bemoved, which tariff contains the rates, rules, gan, the temperature falling from a maxi. and regulations governing the transportation mum of 47 degrees to a minimum of 20 deof perishable freight in carload lots, and pro- grees above zero; that on November 10th the

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(273 S.W.) maximum was 38, and the minimum 17, above , sonably have consumed 48 hours, too late to zero; that on November 11th the maximum have caught, on November 10th, a freight was 33, and the minimum 14, degrees above | train to arrive at Shenandoah at 2:30 p. m., zero; that on November 12th the maximum the time plaintiff's evidence shows the train was 22, and the minimum 14, degrees above arrived on November 13th. It may be inzero; that on November 13th, the day the ferred from plaintiff's evidence that, if the nursery stock was delivered to plaintiff, the nursery stock car had been delivered to plainmaximum was 34, and the minimum 15, de- tiff by the Wabash at 5:30 p. m. on November grees above zero; that on November 8th, the 11th, there would have been neither delay day of delivery of the car containing the nor negligent delay on the part of the Burnursery stock by the Nickle Plate to the Burlington. lington (the hour of delivery being 9:30 a. m.) Considering evidence of the temperature at the maximum was 52, and the minimum 44, Omaha, 53 miles west of Shenandoah, as degrees above zero; that this cold wave trav- shown by the climatic reports, the testimony eled from west to east, and the nursery stock of witness Morse and plaintiff's other witnessfrom east to west.

es, we think it is shown with sufficient cerOne of plaintiff's witnesses, C. E. Morse, tainty by plaintiff's evidence that even if the the storage foreman at Shenandoah, testified nursery stock had been delivered on Novemthat the cold spell lasted from 4 days to a ber 11th, at 5:30 p. m., it would have been deweek, starting, to the best of his recollection, livered within a reasonable time, and that it about 5 days before the shipment arrived, to would also have been frozen and damaged.' wit, on November 13th, and that it froze the The freezing, not the delay on the part of the ground at Shenandoah between 4 and 5 inch- Burlington, was the proximate cause of the es; that to the best of his knowledge the injury or damage. The Burlington should be temperature was below 17 degrees above zero, absolved from liability. We think the trial with the weather moderating about a day be court erred in refusing to direct a verdict in fore the car arrived.

its behalf. The evidence tends to show, and the case II. The Nickle Plate also contends that was tried on the theory by both parties, that the trial court erred, at the close of plainnursery stock is perishable freight, and must tiff's evidence and at the close of the whole receive specially fast movement. The evi- evidence, in refusing to direct the jury to redence further tends to show that 48 hours turn a verdict for defendant. was a reasonable time for the transportation [2, 3] The shipment in question was interof freight from Chicago to Red Oak, Iowa, state, and is therefore wholly governed by the latter point being 19 miles from Shenan- the federal law applicable. In determining doah, the freight going down to Shenandoah the liability of the carrier, under the facts from Red Oak on a local; that plaintiff's here involved, we must look to the laws of plant at Shenandoah is situated on the Wa- the United States as enacted by Congress, bash, and has no connection with the Burl- the contract between the parties, and comington tracks except through a Y track; that, mon-law principles promulgated by the Unitin order to deliver a railroad car to plaintiff's ed States courts. New York, C. & H, R. plant brought in by the Burlington, it was Co. v. Bea ham, 242 U. S. 148, 37 S. Ct. 43, necessary to await an incoming Wabash | 61 L. Ed. 210; Johnson v. Railroad, 211 Mo. freight train to switch the car and haul it App. 564, 249 S. W. 658. over the Wabash tracks to the plant; that [4] III, The Nickle Plate was the initial the car in question was placed by the Bur- or contracting carrier, and, as the shipment lington on the Y track November 13th, about was interstate, it became subject to the pro2:30 p. m., and delivered by the Wabash to visions of the Carmack Amendment (Act of plaintiff the same day about 5:30 p. m. June 29, 1906, c. 3591, $ 7; 34 Stat. at Large,

Plaintiff's evidence further tends to show 595; U. S. Comp. Stat. $S 8604a, 8601aa; that the Burlington admitted the car con- 4 Fed. Stat. Ann. [2d Ed.) p. 506), making taining this nursery stock was delivered by the initial carrier responsible for loss on the Nickle Plate to the Burlington on Novem- its own line or the line of a connecting carber 8th, 9:30 a. m., plaintiff trying its case on rier (Johnson v. Railroad, 211 Mo. App. 564, that theory. The record is wanting evidence 249 S. W. 658). tending to show that the Burlington sched [5, 6] IV. It is the contention of the Niculed a freight train by which it could, im- kle Plate that plaintiff's evidence failed to mediately after receiving the car, commence show either a delay or a negligent delay. transportation, and it is evident that extra We refuse to assent to either proposition, service on its part would have been discrim- The reasonable time for transporting a shipination under the Interstate Commerce Acts. ment of this character between Painesville If we could assume, there is no evidence in and Shenandoah was not in excess of 6 days, the record to that effect, that a regularly while this particular shipment took from scheduled freight train left for Red Oak in October 28th to November 13th inclusive, the afternoon or evening of November 8th, consuming 17 days. Defendant failed to exyet transportation from Chicago to Red Oak, plain the cause of the delay. Having reas shown by plaintiff's testimony, would rea- I fused to absolve itself by explanation after

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plaintiff made a prima facie case, it will, the freezing brought about by defendant's be presumed, in the case of perishable goods, negligence in failing to carry the goods with the delay was negligent.

due diligence and within a reasonable time. [7] Measured by the common law of the The trial court properly refused to give the federal courts, it became the duty of the jury the requested instructions directing a Nickle Plate to transport diligently, that verdict for defendant. is, within a reasonable time, to destination. V. The Nickle Plate assigns error relative In view of the perishable nature of the to the giving of plaintiff's instructions Nos. freight, diligence was imperative. Contem- 1 and 2. Two grounds of error are assigned: plating the latitude and the season, freezing (a) Mere delay in the shipment does not of weather could have been foreseen and an- itself establish negligence; (b) the instructicipated, notwithstanding

that nursery |tions submit to the jury negligent delay, stock could usually, with impunity, be moved without information as to the constituent from Painesville, over the route taken, as elements, and without defining the terms. late as November 10th. The delay of 11 [8] (a) We agree that mere delay does not days was unwarranted and unreasonable, of itself establish negligence. However, we and, had reasonable and diligent carriage think our discussion of the question of a obtained, as the nature of the stock demand- directed verdict in the preceding paragraph ed, freezing would not have resulted. The of this opinion fully answers the contention. governing rule is stated in note to 3 Ann. We have said in effect that the evidence Cas. loc. cit. 454, where it is said:

tends to demonstrate that there was an un"It is generally held that a negligent delay warranted and unreasonable delay of perin the transportation of perishable goods by ishable property, unexplained, and that reason of which they are injured by being freezing weather and consequent damage frozen renders the carrier liable for the in- could have been foreseen and anticipated. jury. * «The property in question in We think the evidence demonstrates more this case was perishable. It was shipped at a than mere delay, for negligent delay was season of the year when severe weather was to prima facie shown. be apprehended, in the ordinary course of nature in this climate. These facts imposed on

[9] (b) A reading of the above instructions the carrier the duty of forwarding it to its will establish that the constituent elements destination with dispatch. Great diligence was

of negligent delay are set forth therein. required of it in the performance of the duty. Among other things, the instructions require If by its negligence the property was exposed the jury to find, in substance, that in transwhile in its possession to the danger which porting the nursery stock the same was neginjured it, we think it is responsible for the ligently delayed for a longer time than the injury.'"

usual, ordinary, and reasonable time re

quired to transport same; that, had said In Johnson v. Railroad, supra, the court

shipment been transported in a reasonable say:

time, it would not have frozen; that, if it "It cannot be doubted, we think, that the was not transported within a reasonable duty to transport with reasonable dispatch, or time, and on account of delay, if any, same to use due diligence to that end, is as much a

was caught and subjected to freezing, if any, part and parcel of the common-law duty of of such duration that said stock was frozen the carrier as is the duty to convey safely. In 4 Ruling Case Law, pp. 737, 738, $ 206, it is and damaged, and that by the exercise of said: “While, in the absence of an express con- ordinary care defendant should and could tract, no rule of law exists specifying the exact have foreseen and anticipated the freezing, time within which delivery must be made, etc. While the instructions proceed at greatstill the authorities generally agree that there er length than herein set out, we think that is an implied promise to carry and deliver with we have elaborated, in a condensed form, in a reasonable time. In other words the law their contents sufficiently to show that the requires of common carriers due diligence, this criticism made is wanting merit. Further, being as much a part of their contract as the the term “negligence” is so well understood obligation to deliver the property transported in good condition, and if any unreasonable and by the laity that defining it would have clarunnecessary delay occurs, either in the trans- | ified neither the situation nor the instrucportation thereof or its delivery after arrival

tions. We think the instructions conform at the terminus of the route, for the immediate to the law and intelligently inform the jury and proximate damages resulting from such as to the issues. neglect of duty the carrier is liable.''

VI. The Nickel Plate charges the trial

court erred in refusing to give an instrucThe above rule is supported by late cases tion in its behalf as follows: from the United States Supreme Court. They are P. & H. R. Co. v. Produce Ex

“The court instructs the jury that the burden change, 240 U. S. 34, 36 S. Ct. 230, 60 L. of establishing the negligence of the defendEd. 511, L. R. A. 1917A, 193; C. & A. R. complained of is upon the plaintiff, and that,

ants in the transportation of the shipment Co. v. Kirby, 225 U. S. 155, 32 S. Ct. 648, unless you find from the greater weight of all 56 L. Ed. 1033, Ann. Cas. 1914A, 501.

the evidence in the case that the defendants The proximate cause of the damage was were guilty of negligence, your verdict must

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