Johnston v. Chicago & Northwestern Railway Co.

246 N.W. 336, 210 Wis. 227, 1933 Wisc. LEXIS 332

• Court: Wisconsin Supreme Court
• Decided: January 10, 1933
• Status: Published

Opinions

Fairchild, J.

This was an initial railway shipment of goods by respondents and this fact may explain the absence of any evidence of the length of time within which the flowers might be safely transported or held in transit without loss, and the failure to effect an agreement for special handling of the car. The car had been in the process of loading for several days.

The duties and obligations of the appellant are outlined in the schedules for train movements, including the practices followed in switching cars to the plant of the Fulton Market & Cold Storage Company and under the stipulations in the bill of lading. We start the consideration of this case with the proposition that the carrier was not bound to transport the carload of peony buds by any particular train, or otherwise than with reasonable dispatch. Stephens v. Chicago & N. W. R. Co. 200 Wis. 181, 183, 227 N. W. 875. In the case cited Mr. Justice Stevens said:

“The basis of liability for delayed transportation by rail is negligence, — the failure to exercise due diligence in maintaining train schedules.”

Wallace-Farmer v. Davis (Iowa), 199 N. W. 307, 308, a case in which the contract did not provide for delivery of a shipment at a particular time, points to the existence of the rule where loss results from transportation of goods by a common carrier that the burden is on the shipper to show an unreasonable delay, and in the application of the rule to that case the following statement was made:

“A railroad company is ordinarily under no duty to transport stock with more dispatch than is provided by its regular schedule of trains existing at the time of the shipment in question, and a shipper is presumed to have consented to the carriage of his stock by a regular scheduled train in the absence of a contract for special service or an earlier delivery.”

There is an absence of any evidence in the record now before us of a departure from the regular schedule which in any way supports a claim of negligence in the handling of the carload of peony buds. It arrived at Proviso twenty minutes ahead of time, was moved ahead of schedule from there on, and reached the Western Avenue yard at 2:15 p. m. June 17th. From there it was moved according to the general practices obtaining into the Halstead street district and to its destination at the Fulton Market & Cold Storage Company where it was placed before 6 a. m. June 18th.

There is no controversy over the fact that when the car was opened the buds were found to be damaged. The length of time peony buds will endure without losing their marketability is not established and the evidence does not disclose any suggestion of a likelihood of deterioration if moved according to schedule in properly cooled cars. But the evidence shows the loading of this car began on the 11th of June and continued until the 16th; that when the car left Appleton the buds were properly packed and in good condition. It may be concluded from this that had the car been delivered earlier loss to respondents would not have occurred. However, duties arising under the agreement, the schedule, and the general practice or custom with relation to moving cars in and out of the Halstead yard district, are not capable of visiting this loss upon the appellant. This was the first shipment by respondents over the railroad of a carload of their buds. They were anxious for a prompt delivery but made no arrangements for a movement of this merchandise under special order. There is testimony of an opinion expressed by one of appellant’s employees at Appleton that the car would arrive at its destination in the forenoon of June 17th; also a telegram in which another agent of appellant wired its agent at Appleton that the car should arrive about 4 p. m. June 17th, but this is not evidence as to what were customary and usual steps taken for the transportation of a shipment over the route in question. It amounts to no more than an expression of opinion. The telegram was not communicated in any way to the respondents until long after the sending of it. The statement of the agent as to when the car would arrive at its destination is not relied on by respondents as a guaranty binding upon the appellant. Respondents contend that the statement is of a fact by appellant’s agent binding as to a reasonable and customary time required for the movement of the car. But in the absence of some agreement requiring a movement in accordance with that statement the usual schedule would control, and unless there was negligence in relation to the handling of the matter according to the usual schedule no cause of action exists in favor of the shipper.

There is a claim of a dispute on the point of whether or not the car was promptly moved from Western Avenue into the Cold Storage plant, and a witness for the respondents (the traffic manager of the Cold Storage Company) testified to receiving shipments of poultry on this day from Watertown, South Dakota, over the Northwestern Railroad through the Proviso yard, but he did not know the time when the shipment arrived and the movements were without his knowledge. In connection with this testimony he stated his practice in relation to ordering the movement of cars as set forth in the statement of facts. On the other hand, there is positive evidence to the effect that this shipment was transported within the usual and customary time, that there was no unreasonable delay, and no negligence on the part of the appellant. In the absence of special instructions from the shipper there would be nothing to suggest the necessity of resorting to unusual means to place the car at its destination ahead of the usual schedule. There is evidence that the appellant followed instructions given it. When the car reached the Western Avenue yard it was two miles from its destination; although it arrived at the Western Avenue yard ahead of schedule, it was too late to have the benefit of scheduled movement into the Halstead street district that day. The orders of the traffic manager of the Fulton Market & Cold Storage Company on which appellant acted were given in the due course of business and according to usual practices.

The shipment was consigned to the respondents themselves in care of the concern which gave the orders. There was no negligence on the part of the appellant in following the usual schedule and in accepting the directions of the traffic manager of the one designated to receive the shipment. The traffic manager knew of the shipment of the car as early as 3 p. m. June 17th, and at 4 o’clock issued the

instructions referred to. These instructions were carried out. The traffic manager did not expect that the car would come into the Storage under special handling and his concern was to see that it was handled in the ordinary way. The only inferences to be drawn from the evidence are to the effect that the merchandise was moved according to the schedule which then existed, that the difference in time between the arrival of the car and the time scheduled for its arrival at points where there was a difference did not amount to a delay, and all this appears so conclusively as to place the matter beyond serious contention. The appellant was entitled to have its motion for a directed verdict granted. This conclusion makes unnecessary a discussion of other errors assigned.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss plaintiffs’ complaint.