Orem Fruit & Produce Co. v. Northern Central Railway Co.

Briscoe, J., delivered the opinion of the Court. This is a suit brought by The Orem Fruit and Produce Company of Baltimore City, a corporation, organized under the laws of Maryland, against the Northern Central Railway ¹² Company and the Pennsylvania Railroad Company, to recover damages for an alleged breach of contract in failing to safely carry in a refrigerator car four hundred and seventy-nine crates of tomatoes from Baltimore City to Montreal, Canada. The declaration in substance states that on the igth of July, 1904, the defendants were common carriers of goods for hire from Baltimore City to divers places in the United States and Canada; that on this date the plaintiff delivered to them, as such carriers, four hundred and seventy-nine crates of tomatoes, of the aggregrate value of nine hundred and fifty-eight dollars, to be carried in a refrigerator car from Baltimore to Montreal, Canada, and there to be delivered to J. R. Clogg & Co. ; the defendants at the same time agreeing to re-ice the refrigerator car in which the tomatoes were shipped at Wilkesbarre, Pennsylvania, and'Oneonta, New York, but the defendants did not do so. It further states that the defendants wholly neglected their duty in this respect, and by the neglect to safely carry and re-ice the car according to the contract, the tomatoes were wholly lost or destroyed and the plaintiff sustained loss and damage to the extent of $1,000.

The case was tried in the Baltimore City Court and from a jndgment in favor of the defendants, the plaintiff has appealed. There are six bills of exceptions in the record; five of them relate to the rulings of the Court below upon the admissibility of evidence and the sixth to its ruling upon the prayers. As the action of the Court in rejecting the plaintiff’s prayer and in granting the defendant’s prayer which withdrew the case from the consideration of the jury, present the important questions in the case, it will be considered at once. 'The undisputed facts of the case briefly stated are these: The plaintiff had been a large shipper of fruit and produce from Baltimore City, their place of business, to Montreal, Canada, in refrigerator cars belonging to the appellee. O.n the 19th of July, 1904, the appellant delivered to the appellees, as common carriers, in the City of Baltimore four hundred and seventy-nine crates of tomatoes to be carried in one ¹³ of their refrigerator cars from Baltimore City to the place of destination, Montreal, Canada.

The route of the car was over several systems of railroads, to-wit, from Baltimore to Sunbury, Pa., over the Northern Central Railway; from Sun-bury to Wilkesbarre over the Sunbury Division of the Phil, and Erie Railroad, operated by the Pennsylvania Railroad Company; from Wilkesbarre by the Delaware and Hudson Company to Rouse’s Point, New York, and by the Grand Trunk Railroad from the last-named point to Montreal, Canada, the point of destination. The tomatoes were received by the Northern Central Railroad Company at Baltimore in good condition and were placed in a car for transportation under the terms of a bill of lading set out in the record. The car was inspected and properly iced'in Baltimore, before leaving that city, at 5.40 P. M. on July 19th, 1904. It arrived in Montreal, on the 22nd of July, 1904, in a “heated condition, the ice tanks empty and the tomatoes dead ripe.” The sum realized from the sale of the tomatoes amounted to $37-59. whereas, if they had not been injured and damaged, the plaintiff would have received from $800 to $900.

According to the terms of the contract between the plaintiff and defendant, stated in the bill of lading, the car was to be re-iced at two points, viz. at Wilkesbarre, Pa., on the line of appellees, a distance of about 213 miles from Baltimore, and at Oneonta, New York, on the line of the Delaware and Hudson Railroad a connecting carrier, 167 miles from Wilkes-barre. The distance from Oneonta to Montreal being about 215 miles, making the entire route of the car 600 miles. It further appears that one of the defendant’s lines ended at Sunbury, Pa., and the other at Wilkesbarre, Pa., but they had a through billing arrangement with the Delaware and Hudson Railroad. The re-icing of cars is noted on the card way bill which goes with the car and is delivered to the connecting carrier.

The card shows the initials, the car number, its destination, routing, and the consignee. It is admitted that the car was not re-iced at either Wilkes- ¹⁴ barre, Pa„ or Oneonta, N. Y., according to the terms of the bill of lading. The car inspector for-the Pennsylvania Railroad Company testified, that he inspected the car at Wilkes-barre, and made the entry in his record, “no ice required,” that he lifted the lids on top of the refrigerator car, and saw that the ice was about four inches from the top, that it was the rule of the company, that if they could not get 600 pounds of ice in the ice tank, they considered the car full and they do not put any more ice in it; that he did not re-ice the car, that he lifted the lid of the ice-tank and found the ice within four inches from the top and concluded that no ice was required. The witness Burroughs, assistant yard master of the Delaware and Hudson Railroad, testified, that he inspected the car at Oneonta, N. Y., on July 20th, 1904, and found the ice had melted about a fo'ot from the top and he did not deem it necessary to re-ice it.

There was evidence to show that the refrigerator car was delivered by the Pennsylvania