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Where carrier fails to explain cause for shipment of perishable freight consuming much more than usual time for transportation to destination, it will be presumed that delay was negligent.

permitted the state's attorney to introduce | 6. Carriers 132-Unexplained delay presumed negligent. the witness Wallace in rebuttal to testify that the property taken by the defendant was worth $25. The defendant objected on the ground that the evidence should have been introduced in chief, and it was not proper to receive it in rebuttal. It is largely a matter within the discretion of the trial court to determine whether such evidence should be received. The trial judge, in his discretion, may permit evidence in rebuttal which should Crosby v. have been introduced in chief. Evans, 281 Mo. 202, 219 S. W. 948. The defendant was in no way harmed by the introduction of evidence of value in rebuttal instead of in chief, because he had ample opportunity to meet it.

The judgment is affirmed.
All concur.

MOUNT ARBOR NURSERIES v. NEW
YORK, C. & ST. L. R. CO. et al.
(No. 18722.)

7. Carriers 96-Carrier required to transport interstate shipment of perishable nursery stock within reasonable time to destination.

Carrier is required to exercise diligence in transporting interstate shipment of perishable nursery stock within reasonable time to desti

nation.

8. Carriers 116-Mere delay of shipment by carrier does not establish negligence.

Mere delay by carrier of a shipment does not of itself establish negligence.

9. Carriers 137 Instructions held to set forth constituent elements of negligent delay by carrier.

Instructions in shipper's action against carrier, for damages to nursery stock by freezing, held to sufficiently set forth constituent elements of negligent delay.

(St. Louis Court of Appeals. Missouri. May 10. Negligence

5, 1925.)

1. Carriers 177(1)—Connecting carrier held not liable for damage to nursery stock by freezing, not due to its delay.

Connecting carrier held not liable for damage to nursery stock by freezing, though shipment was delayed where freezing was proximate cause of damage, and would have occurred had there been no delay.

121 (1)—Burden of proof on party alleging negligence.

Burden of establishing negligence is on party who asserts it.

11. Carriers 137 Instruction in action against carriers for damage to shipment held properly refused as misleading.

In shipper's action for damage to nursery stock by freezing, instruction that burden of establishing carriers' negligence was on plaintiff, and that, unless jury found that carriers were negligent, verdict should be for them, 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.

2. Commerce 8(12)-Shipment in interstate commerce governed by federal law applica ble.

3. Commerce 8(13)—Liability of carrier for damage to interstate shipment governed by federal laws, contract, and common-law principles promulgated by federal courts.

Liability of carrier for damage to interstate shipment by freezing is governed by federal laws, contract between parties, and commonlaw principles promulgated by federal courts. 4. Carriers 177(3)—Liability of initial carrier for damage to interstate shipment subject to Carmack Amendment.

Liability of initial carrier for damage to interstate shipment was subject to Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa), making initial carrier responsible for loss on its own line or line of a connecting carrier. 5. Carriers 136 - Whether nursery stock was negligently delayed by carrier, thereby subjecting it to frost, held for jury.

In action against carrier for damage to nursery stock by freezing, whether initial carrier negligently delayed shipment, thereby subjecting it to frost, held for jury.

evidence.

12. Trial 251 (3)-Instruction held properly refused as attempting to raise a false issue.

In action against carriers for damage to nursery stock by freezing, instruction that plaintiff, by ordering box car in which to make shipment, assumed risk of damage from freezing, and, as injury was caused by shipment being made in a box car, verdict should be for carriers, held properly refused as attempting to raise a false issue, where cause of action was based on negligent delay.

13. New trial 8-That court granted new trial as to one of defendants held not to require granting of new trial as to other, where their liability was several.

In action against initial and connecting carriers for damages to nursery stock by freezing, that court granted new trial as to one of defendants did not require it to grant new trial as to other; their liability being several.

Appeal from Circuit Court, Marion County; Charles T. Hays, Judge.

(273 S.W.)

Action by the Mount Arbor Nurseries 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 er. 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 oth

Glahn & Diemer, of Palmyra, for appellant

New York, C. & St. L. R. Co.

ers testified for plaintiff that shipments could

start from Painesville in box cars for Shen

andoah as late as November 10th without danger of damage by freezing; that a tem

H. J. Nelson and J. G. Trimble, both of St.
Joseph, Glahn & Diemer, of Palmyra, and J.
A. Lydick, of St. Joseph, for appellant Chi-perature of 25 degrees above zero or lower
cago, B. & Q. R. Co.

Rendlen & White, of Hannibal, and F. D. Wilkins, of Louisiana, Mo., for respondent.

will damage nursery stock in box cars; that this nursery stock had been packed in a cusfloor 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, wherein a carload of nursery stock was caused to freeze. The jury returned a verdict in favor of plaintiff for $1,329.51 against the New York, Chicago & St. Louis Railroad Company, hereinafter called the Nickle Plate, of which amount plaintiff voluntarily remitted one cent, and for $1,329.50 against the Chicago, Burlington & Quincy Railroad Company, hereinafter called the Burlington. On the verdicts of the jury, the court rendered a joint judgment against both defendants in the sum of $1,329.50, from which each defendant appealed.

which was wet down by sprinkling with water, adding another layer of trees, and so continuing until the loading operation was completed; that the nursery stock in this car was perishable; that the distance over the route of this shipment from Painesville to Chicago, Ill., on the Nickle Plate is 369 miles, and from Chicago to Shenandoah on the Burlington 462 miles, a total distance of 831 miles; that the ordinary, usual, and customary time for transporting ordinary freight from Painesville to Shenandoah is from 4 to 5 days; that it was agreed that the car was delivered to the Burlington at Chicago on November 8, 1920, at 9:30 a. m. The evidence further tends to show that it took 11 days for this car to travel 369 miles from Painesville to Chicago, and 6 days from Chicago to Shenandoah; that the reasonable time for transporting freight from Painesville to Chicago is 2 days, and from Chicago to Shenandoah 22 days; that, on the third morning after the delivery of the car on October 26th, plaintiff's shipping clerk called the agent of the Burlington at Shenandoah, gave him the number and routing of this car of nursery stock, requesting a tracing; that

There were two trials of this case. In the first trial the jury returned a verdict in favor of plaintiff against both defendants. Thereupon defendants filed their separate motions for a new trial and in arrest of judgment. The trial court awarded the Burlington a new trial, withholding the judgment upon the verdict as to the Nickle Plate until such new trial was determined as to the Burlington. The second trial resulted in a verdict against the Burlington for $1,329.50. The verdict standing against the Nickle Plate was for $1,329.51. After the Burlington's motion for 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 cent from the verdict against the Nickle Plate, and the trial court thereupon entered a joint judgment in favor of plaintiff and against both defendants in the sum of $1,329.

50.

Plaintiff's evidence tends to show that on October 28, 1920, at Painesville, Ohio, Mark Welch, a nursery man, placed in Pennsylvania car No. 511175, and delivered to the Nickle Plate, trees and nursery stock in good condition, sound and merchantable, consigned to plaintiff at Shenandoah, Iowa; that the trees and nursery stock were properly packed and loaded in a box car according to the best usage known in the nursery business for that time of the year; that the stock was well bedded and packed in straw; that the temperature at Painesville, at the time of the shipment as shown by the government weather reports, was 42 degrees Fahrenheit; that

about 8 days after the car had been shipped the shipping clerk again called the Burlington regarding this car, telling him that the car should be at destination, and the agent replied that he had a line on the car-that it would be taken care of; that the shipment failed to arrive until about 6 days after this conversation; that plaintiff introduced in evidence a copy of a claim presented to defendants, stating thereon, had it been delivered within the usual time of 8 to 12 days, it would have escaped a cold wave, which struck about November 10th to 11th, at which time the damage was done.

Plaintiff's evidence further tended to show the climatic conditions as prepared by the United States Weather Bureau for various points in Ohio, Indiana, Illinois, Iowa, and Omaha, Neb., giving the maximum and minimum temperatures on each day from October 28th to November 13th, inclusive; that the

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 above; that Shenandoah was about 53 miles east of Omaha.

Plaintiff's witness Morse testified there was a cold spell at Shenandoah, Iowa, continuing from four days to a week, and starting about five days before shipment arrived at Shenandoah; that to the best of his knowledge the temperature was below 17 degrees above zero; that the ground was frozen between 4 and 5 inches, and that nursery stock packed as was this shipment could be transported in a box car at a temperature as low as 25 degrees above zero without causing damage by freezing; that they will stand a temperature of 25 degrees; that when the box car was ordered no request for protection from damage by freezing was made.

The evidence further tends to show that the nursery stock was more or less frozen when received at Shenandoah, Iowa, and it was agreed that the reasonable value was $1,226.11, and that the nursery stock was received in the same car in which it was loaded at Painesville.

Shippers' Protective Service." This tariff provided that, by requesting and paying the charges, plaintiff could have protected the shipment from freezing, and further provided that, upon failure to make a request for such service, the shipper would be deemed to have elected to make its shipment under its own protection and at its own risk of damage by freezing, with no obligation on defendant to furnish artificial heat.

The petition alleges in part: That the defendants did not take proper care of said goods, wares, and merchandise, to wit, said nursery stock, and did not safely keep, carry, and deliver the same without delay, but on the contrary negligently and carelessly so delivered said shipment, and so negligently and carelessly performed their duties as common carriers, that they permitted said shipment of stock of merchandise to be delayed for a long period of time over and beyond what was reasonably required to transport said shipment from Painesville, Ohio, to Shenandoah, Iowa, to wit, for a space of about 8 to 11 days more than was reasonably required to transport and carry said merchandise, and negligently and carelessly suffered said nursery stock to be and remain exposed to cold and frost, and that by reason of such negligent and careless delay in the transportation of said stock or merchandise the same was exposed to cold and frost, which would not have occurred had said ship

The evidence further tended to show by other witnesses that nursery stock packed as this was would not freeze unless the temperature went below 18 to 20 degrees above zero, and other evidence that it would freeze at 20 degrees above zero; that practically all of the nursery stock was damaged, and part of it was totally dead; that the box car contained no stove or heater to protect the shipment been transported with reasonable disment; that shipping the nursery stock in a box car was the proper method of shipping at the time it was shipped; that a box car load of dormant nursery stock could be safely shipped on November 1st from Painesville to Shenandoah, also on the 2d, 5th, and up to about November 10th; that dormant nursery stock would freeze between 20 and 25 degrees above zero, depending on whether conditions and the way the wind blows.

patch and due care, and that, by reason of such negligent delay on the part of the defendants and each of them, said nursery stock became and was frozen, etc.

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Such further facts as are pertinent will appear in the discussion of the questions raised. [1] I. The Burlington contends the trial court erred in refusing to direct the jury to return a verdict in its favor.

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 as 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 maxiand regulations governing the transportation mum of 47 degrees to a minimum of 20 de

(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 Bur- lington. 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 from east to west.

One of plaintiff's witnesses, C. E. Morse, the storage foreman at Shenandoah, testified that the cold spell lasted from 4 days to a week, starting, to the best of his recollection, about 5 days before the shipment arrived, to wit, on November 13th, and that it froze the ground at Shenandoah between 4 and 5 inches; that to the best of his knowledge the temperature was below 17 degrees above zero, with the weather moderating about a day before the car arrived.

The evidence tends to show, and the case was tried on the theory by both parties, that nursery stock is perishable freight, and must receive specially fast movement. The evidence further tends to show that 48 hours was a reasonable time for the transportation of freight from Chicago to Red Oak, Iowa, the latter point being 19 miles from Shenandoah, the freight going down to Shenandoah from Red Oak on a local; that plaintiff's plant at Shenandoah is situated on the Wabash, and has no connection with the Burlington tracks except through a Y track; that, in order to deliver a railroad car to plaintiff's plant brought in by the Burlington, it was necessary to await an incoming Wabash freight train to switch the car and haul it over the Wabash tracks to the plant; that the car in question was placed by the Burlington on the Y track November 13th, about 2:30 p. m., and delivered by the Wabash to plaintiff the same day about 5:30 p. m.

Plaintiff's evidence further tends to show that the Burlington admitted the car containing this nursery stock was delivered by the Nickle Plate to the Burlington on November 8th, 9:30 a. m., plaintin trying its case on that theory. The record is wanting evidence tending to show that the Burlington scheduled a freight train by which it could, immediately after receiving the car, commence transportation, and it is evident that extra service on its part would have been discrimination under the Interstate Commerce Acts. If we could assume, there is no evidence in the record to that effect, that a regularly scheduled freight train left for Red Oak in the afternoon or evening of November 8th, yet transportation from Chicago to Red Oak, as shown by plaintiff's testimony, would rea

of witness Morse and plaintiff's other witnesses, we think it is shown with sufficient certainty by plaintiff's evidence that even if the nursery stock had been delivered on November 11th, at 5:30 p. m., it would have been delivered within a reasonable time, and that it would also have been frozen and damaged. The freezing, not the delay on the part of the Burlington, was the proximate cause of the injury or damage. The Burlington should be absolved from liability. We think the trial court erred in refusing to direct a verdict in its behalf.

II. The Nickle Plate also contends that the trial court erred, at the close of plaintiff's evidence and at the close of the whole evidence, in refusing to direct the jury to return a verdict for defendant.

[2, 3] The shipment in question was interstate, and is therefore wholly governed by the federal law applicable. In determining the liability of the carrier, under the facts here involved, we must look to the laws of the United States as enacted by Congress, the contract between the parties, and common-law principles promulgated by the United States courts. New York, C. & H. R. Co. v. Beaham, 242 U. S. 148, 37 S. Ct. 43, 61 L. Ed. 210; Johnson v. Railroad, 211 Mo. App. 564, 249 S. W. 658.

[4] III. The Nickle Plate was the initial or contracting carrier, and, as the shipment was interstate, it became subject to the provisions of the Carmack Amendment (Act of June 29, 1906, c. 3591, § 7; 34 Stat. at Large, 595; U. S. Comp. Stat. §§ 8604a, 8604aa; 4 Fed. Stat. Ann. [2d Ed.] p. 506), making the initial carrier responsible for loss on its own line or the line of a connecting carrier (Johnson v. Railroad, 211 Mo. App. 564, 249 S. W. 658).

[5, 6] IV. It is the contention of the Nickle Plate that plaintiff's evidence failed to show either a delay or a negligent delay. We refuse to assent to either proposition. The reasonable time for transporting a shipment of this character between Painesville and Shenandoah was not in excess of 6 days, while this particular shipment took from October 28th to November 13th inclusive, consuming 17 days. Defendant failed to explain the cause of the delay. Having refused to absolve itself by explanation after

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. The trial court properly refused to give the jury the requested instructions directing a verdict for defendant.

[7] Measured by the common law of the federal courts, it became the duty of the Nickle Plate to transport diligently, that 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 days was unwarranted and unreasonable, and, had reasonable and diligent carriage obtained, as the nature of the stock demanded, freezing would not have resulted. The governing rule is stated in note to 3 Ann. Cas. loc. cit. 454, where it is said:

"It is generally held that a negligent delay in the transportation of perishable goods by reason of which they are injured by being frozen renders the carrier liable for the injury. * "The property in question in this case was perishable. It was shipped at a season of the year when severe weather was to be apprehended, in the ordinary course of nature in this climate. These facts imposed on the carrier the duty of forwarding it to its

destination with dispatch. Great diligence was required of it in the performance of the duty. If by its negligence the property was exposed while in its possession to the danger which injured it, we think it is responsible for the injury.'"

In Johnson v. Railroad, supra, the court say:

[8] (a) We agree that mere delay does not of itself establish negligence. However, we think our discussion of the question of a directed verdict in the preceding paragraph of this opinion fully answers the contention. We have said in effect that the evidence tends to demonstrate that there was an un

that

warranted and unreasonable delay of perishable property, unexplained, and freezing weather and consequent damage could have been foreseen and anticipated. We think the evidence demonstrates more than mere delay, for negligent delay was prima facie shown.

[9] (b) A reading of the above instructions

will establish that the constituent elements of negligent delay are set forth therein. Among other things, the instructions require the jury to find, in substance, that in transporting the nursery stock the same was negligently delayed for a longer time than the usual, ordinary, and reasonable time required to transport same; that, had said shipment been transported in a reasonable 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 the carrier as is the duty to convey safely. In of such duration that said stock was frozen 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 instrucWe think the instructions conform portation thereof or its delivery after arrival tions.

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.'"

The above rule is supported by late cases from the United States Supreme Court.

They are P. & H. R. Co. v. Produce Ex

change, 240 U. S. 34, 36 S. Ct. 230, 60 L. Ed. 511, L. R. A. 1917A, 193; C. & A. R. Co. v. Kirby, 225 U. S. 155, 32 S. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501.

VI. The Nickel Plate charges the trial court erred in refusing to give an instruction in its behalf as follows:

of establishing the negligence of the defend

"The court instructs the jury that the burden

ants in the transportation of the shipment complained of is upon the plaintiff, and that, unless you find from the greater weight of all the evidence in the case that the defendants

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