Hanson v. Pennsylvania Railroad

60 A. 1101, 72 N.J.L. 407, 43 Vroom 407, 1905 N.J. Sup. Ct. LEXIS 63

• Court: Supreme Court of New Jersey
• Decided: June 12, 1905
• Status: Published

Opinion

The opinion of the court was delivered by

Dixon, J.

This is an appeal from the First District Court of Jersey City, rendered on a verdict in favor of the plaintiff. On such an appeal, only the determination of the District Court “in point of law or upon the admission or rejection of evidence” is reviewable (Pamph. L. 1902, p. 565), and the determination alleged to be erroneous must appear by a state of the case agreed on by the parties or settled.by the judge of the District Court. The case now before us was settled by the judge.

The record discloses that some evidence offered by the plaintiff jvas received and some offered by the defendant was excluded, against the defendant’s objection, but as the rulings 'of the court on those matters are not referred to in the brief submitted to us on behalf of the defendant, they need not be considered.

The only determination of the court below which calls for review is the refusal of the court to nonsuit the plaintiff.

The action was brought to recover damages for unwarrantable delay by the defendant in delivering at Jersey City crabs that had been shipped at Princess Anne, Maryland, for transportation via the New York, Philadelphia and Norfolk railroad to Philadelphia, and thence via the defendant’s railroad, as a connecting line, to Jersey City. The grounds of the motion to nonsuit were — first, that the plaintiff had failed to show that there was any delay on the defendant’s line; second, that he had failed to show that the crabs were in good condition when received by the defendant, or were not in good condition when they left the 'defendant’s custody; and third, that no notice of the plaintiff’s claim had been filed with the defendant, “according to the agreement made in shipping the goods.”

Respecting the first point, there was evidence tending to prove that the plaintiff had been shipping crabs over the same route for several years; that the defendant’s freight train, by which tire crabs were brought, was scheduled to arrive at Jersey City at one o’clock-in the morning, and ordinarily arrived between midnight and two o’clock in the morning, and that on the occasions complained of, being from August 12th to August 24th, 1904, the train arrived at various hours between eight o’clock in the morning and four o’clock in the afternoon. It also appeared that on these occasions the crabs left Princess Anne within forty minutes after the usual time of departure. On this evidence it was permissible to infer that the defendant’s train, being a scheduled train, left Philadelphia on, or nearly on time, with the crabs on board, and that the delay in delivery at Jersey City occurred on its line.

As to the second point, the evidence was that the crabs were shipped at Princess Anne in good condition, packed in the usual manner; that crabs so packed reached Jersey City in good condition if the train came in on time, and that on the occasions in question the crabs were not in good condition on arrival, many of them being dead. The delay during the heat of August would reasonably account for the deterioration.

On these two points, we think the matters in issue were for the jury.

Eespecting the third point, it is enough to say that the state of the case discloses no agreement requiring the notice mentioned.

The motion for nonsuit was properly denied.

Other matters discussed in the brief of counsel for the defendant do not appear to have been the subject of any determination by the court below, and hence are not open for review here.

The judgment of the District Court should be affirmed.