Merchants & Miners' Transportation Co. v. Story

50 Md. 4, 1878 Md. LEXIS 135

Opinion

Miller, J.,

delivered the opinion of the Court.

The appellant, a Maryland corporation, engaged in carrying passengers and freight between Boston and Baltimore, was sued by the appellee, for damage to certain b&olrs which had been brought to the latter city in one of the company’s steamships. The declaration charges that the defendant agreed to carry said goods from Boston to Baltimore, and safely keep them in Baltimore until it delivered them to the plaintiff, but did not so safely keep the same, but carelessly and negligently permitted said goods while in its possession, to be greatly damaged and injured by water, when it might by reasonable and ordinary care and diligence have prevented such damage and injury.' The defendant pleaded that it did not commit the wrong and injury alleged, and the case was tried before a jury upon issue joined on that plea.

The proof shows that the books packed in boxes were shipped at Boston, on the 9th of September, 1876, under a bill of lading, which stated that “freight carried by this company must be removed from the wharf at Boston and Baltimore, during business hours on the day of its discharge, or it is liable to be stored at the risk and expense of the owner; all merchandise at the owner’s risk while on the wharf.”

The books arrived safely in Baltimore on the 12th of September, and were put on the company’s wharf in the place set apart for Boston freight, where they remained until the 18th of that month. On the day of their arrival, the company addressed and mailed á letter to the plaintiff, giving him notice that the goods were ready for delivery, and stating that they “must be removed within twelve hours, or they will be stored at your risk and ex pense.” The plaintiff did not receive this notice, and did not call for his books until Monday, the 18th of September, when he found them injured and damaged by water. This injury was occasioned by water flooding the wharf during a storm of rain and south-east wind of unusual violence, which occurred on Sunday the 17th of September. The wharf was well covered, and was in other respects, save its proximity to the water, a safe and secure-place for the storage of goods. As to the facts thus stated there is no dispute. There is, however, other evidence in the record which will be noticed presently. Upon all the evidence the Court, in lieu of certain prayers offered by the plaintiff, instructed the jury that if they found “that the plaintiff delivered to the defendant in good order the goods mentioned in the testimony, to be transported for Lire from Boston to Baltimore in one of the defendant’s steamships, and to be there delivered to the plaintiff in-like good order, upon the payment of said hire, and the defendant signed and delivered to the plaintiff, the bill of lading offered in evidence, and did transport the said goods to Baltimore, and landed them in good order upon the said defendant’s wharf in Baltimore, on the 12th of September, 1876, and thereupon addressed and mailed the notice to the plaintiff given in evidence, then at the end of the business day of the 12th of September, the relation of the defendant to the said goods as a common carrier ceased, and the said defendant held the same goods thereafter as a warehouseman, subject only to the liabilities which appertain to that relation; that as such warehouseman, the said defendant was bound to use reasonable care in storing said goods in a place of safety according to their kind, and then by the practice of the same care keeping them from injury till called for by the plaintiff; that reasonable care in this connection means such care as a prudent man would give to the keeping of his own goods of like-kind and under like circumstances; and if the jury shall find that the defendant did not exercise the care above defined, and that the goods were injured for the want of the same, then they will find their verdict for the plaintiff, and will give him such damages as they shall think he has sustained, and if they shall find that the deféndant did exercise such care, then they will find their verdict for the defendant.”

As to the law of this instruction, there can, we think, he no well founded objection. ' In our opinion it correctly interprets the contract between the parties, and correctly states the obligations which the law imposed upon the defendant after the goods had been transported. This, in fact, was not seriously controverted in argument by the appellant’s counsel, hut he insists that under the circumstances of the case, there was no negligence on the part of the appellant, and the Court ought to have so instructed the jury. This question is not raised by an exception to the instruction under rules 4 and 5, (29 Md, 2,) that there was no evidence from which the jury could find that the defendant did not exercise such reasonable care as the instruction defines, hut it is argued that it is properly raised by the Court’s refusal to grant some of the defendant’s prayers. Each of these prayers on the part of the defendant denies the right of recovery upon the finding by the jury of certain facts therein enumerated. To sustain a prayer of this character there must, not only he proof to support its hypothesis, hut the facts stated must of themselves constitute a complete bar to the action, notwithstanding the truth of all other facts in the cause and all inferences fairly deducible therefrom. Now the facts stated in these prayers, (apart from the secure construction, covering and protection of the wharf, rendering it in that respect a fit and safe place for the storage of goods, and the employment of a careful and competent watchman to guard and protect the shed and its contents,) are, that before this day no part of this shed or wharf had been submerged more than once during a period of about twenty years, and that the part of it where these goods were placed had never been submerged before, and -that the submersion of the wharf and injury to these goods on that day were caused by an unusual, unexpected,- and extraordinary high tide, and that - the watchman then in charge could not have prevented the injury with the means at his command, and that-there was- no place 0f more safety to which he could have removed the plaintiff’s goods and the other goods on the wharf with the means at his' command. But there is evidence in the record showing that at- other times the water had risen within a few feet of the floor of the wharf, and on one occasion at least during a storm accompanied by a south-east wind, three-fourths of the wharf was submerged, and a rise of a few inches more would have brought the water upon that part of it where the boxes containing these books were placed; that though placed on the highest part of the-wharf allotted for storage of Boston freight, they were not - on the highest portion of the whole wharf, and that if they had been placed or removed to such ■ highest place, it is doubtful whether.they would have suffered any injury; and certainly it is just and fair to infer if they had been so placed or removed, they would not have been damaged to the extent they were by remaining in the place they were put upon being landed from the vessel. The- natural and necessary effect of a strong south-east -wind is to: drive the water from the bay and river in and upon the city wharves in - this locality, and when such wind is co-incident with a flood-tide the rise of water is increased, and the danger of overflow is proportionate to the duration and violence of the storm. • Of these natural consequences, as well as of the time of the tides, the agents of the -company are presumed to have knowledge and were bound to take notice. Again, according to the testimony of the watchman, who on that day took the place of the defend ant’s regular watchman, and was the sole person charged and entrusted with the care and custody of all the freight on this wharf during this stormy day, it appears that the wind was from the south-east, and it was raining when he went on duty before eight o’clock in the morning, and it commenced raining very heavily about noon, and he says u the tide was rising steadily all day, hut it came with a rush about two o’clock, and the water came upon the wharf, and he commenced removing the goods from the lowest point up higher, and worked away until he was up to his knees in water when he was compelled to desist, and that there were no stevedores about or assistance to he had.” It thus appears, that the danger did not come unannounced or in the night, hut that there was timely notice given of its approach in the morning, and that the water was gradually rising while the storm was increasing in violence, and yet no assistance was procured nor any effort made to obtain it, and no watchfulness of judgment exercised as to the probable effect of the wind and tide, hut the security and safety of all the freight on this wharf was left during the entire morning and day to the unaided exertions of one man. In view of these facts and reasonable inferences, we cannot say the Court was in error in rejecting these prayers of the defendant, nor does it seem to us to he such an exceptional case as would have justified the Court in saying there was no evidence of negligence, and in taking the case from the jury on that ground.

(Decided 24th July, 1878.)

The rulings of the Court upon the other instructions asked by the defendant, and in granting the plaintiff’s sixth prayer, are so obviously correct as not to require further notice.

Judgment affirmed.