GIVENS, J.
Ben T. Ritchie, respondent, sued to recover $2,949.25 as damages alleged to be the result of the delay and negligence of the appellant Oregon Short Line Railroad Company in handling a shipment of eight carloads of sheep from Adrian, Oregon, to Idaho Falls, Idaho. The sheep, after having been on board the cars for 24 hours arrived at Pocatello, Idaho, where they were unloaded and put in the stockyards by appellant for seven days, during which time they were fed hay, etc., totaling $879.25, which amount was paid by respondent, during which time 137 head of sheep died and some 350 head of lambs were prematurely born dead. All respondent’s material allegations were admitted except that the damages arose from appellant’s, negligence, the death of more than 31 sheep, the value of the sheep and lambs, and that the sheep were unloaded without respondent’s knowledge or consent. Appellant further urged that no notice of claim or claim had been filed within 90 days from the unloading of the sheep as provided in the shipping contract 'between the parties, and that the delay at Pocatello and whatever damages were caused thereby, was not through the fault or negligence of appellant but resulted from a sudden and unforeseen strike of some 100 switchmen in the employ of appellant at about the time of the arrival of the sheep in Pocatello.
At the close of the trial appellant moved for a directed verdict in its favor upon six grounds, the first four being on the insufficiency of the evidence to establish negligence on the part of appellant, or any proper legal measure of damages for the premature births, or the market value of the eives that died in the stockyards; the fifth, that no claim had been presented, and sixth, that it affirmatively appeared that the deaths were directly caused by the negligence of respondent in overloading. The motion was denied and the jury returned a verdict for $1,962.27 in favor of respondent; from the judgment on the verdict this appeal is taken.
Numerous errors are assigned which may be grouped under the following heads: First, error in refusing to instruct (appellant’s requested instruction No. 14) that since no notice of damage or claim therefor was filed, respondent could not recover; second, refusal of the court to give a nonsuit or directed verdict (appellant’s requested instruction No. 1); third, the giving of instructions Nos. 14, 15 and 26, which involve the question of to what extent and under what circumstances a strike absolves a carrier from damages for a delayed shipment of livestock; fourth, the giving of instructions Nos. 18 and 19, which laid down the law with regard to what would constitute a reasonable or unreasonable delay; fifth, the giving of instructions Nos. 17 and 23, which are germane to both the above questions; sixth, instruction No. 20, which was the„ reverse of appellant’s requested instruction No. 14, advising the jury that no notice of claim was necessary if the loss was by reason of the carelessness or negligence of the appellant; seventh, the giving of instruction No. 21, defining the degree of care required of appellant in caring for the sheep, and instructions Nos. 22 and 25, which bore upon the question of the condition of the stockyards and the measure of damages, including the liability for feed given the sheep while they were being held at Pocatello. Because of the ultimate conclusion reached, we will not discuss the action of the court in refusing a directed verdict from the standpoint of the sufficiency of the evidence.
Requested instruction No. 14 was as follows:
“You are instructed that, since it appears without conflict from the evidence that plaintiff failed to file or present within the time or in the manner required by the livestock contract, a claim or notice of claim covering loss or damages resulting from death of any sheep or lambs in the stockyards at Pocatello, he is barred and prevented from recovery of damages on account of death of any sheep or lambs and you may not consider or base a verdict on either of those grounds.”
This instruction did not follow the terms of the contract contained in the bill of lading and was therefore properly refused, paragraph No. 5 of the bill of lading being as follows:.
“5. Unless notice of claim for shrinkage, detention, delay, loss or death of, or damage or injury to said livestock is presented in writing to the station agent of the carrier at the point of delivery, or at point of origin, within ninety (90) days from the unloading of said stock at destination, or in case of failure to make delivery, then within ninety (90) days after a reasonable time for delivery has elapsed, and such notice be supplemented by shipper within four (4) months from said date of unloading at destination, or in case of failure to make delivery, then within (4) months after a reasonable time for delivery has elapsed, by filing with such agent definite claim in writing specifying character and amount of claim, such claim shall be deemed to have been waived, and each carrier participating in the service performed or called for by this contract shall be discharged from liability: Provided, however, that if loss, damage or injury complained of was due to delay or damage caused or contributed to by the carrier, or its employees, while being loaded or unloaded, or if damaged in transit by carelessness or neglect of the carrier, or its employees, then no notice of claim or filing of claim shall be required as a condition precedent to recovery.”
Respondent’s action according to the allegations of his complaint was based upon the negligence and carelessness of the carrier in delaying the shipment, and the con
dition of its stockyards and therefore respondent’s action fell within the terms of the proviso, and no notice was necessary as a condition precedent to the bringing of his action.
(Hailey v. Oregon Short Line R. Co.,
253 Fed. 569;
Barrett v. Van Pelt,
268 U. S. 85, 45 Sup. Ct. 437, 69 L. ed. 857.) This also disposes of instruction No. 20, which was in accordance with the proviso.
Appellant contends that the carrier undertook to deliver the freight only within a reasonable time, and that the court erred in permitting plaintiff to testify with regard to the time consumed in making other shipments over the same route. While evidence of the time taken for other shipments between the same points as the ones involved in the suit is competent proof as to the usual and reasonable time
(National Elevator Co. v. Great Northern Ry. Co.,
141 Minn. 407, 170 N. W. 515;
St. Louis I. M. & S. Ry. Co. v. Gunter,
44 Tex. Civ. App. 480, 99 S. W. 152;
Stevens v. Northern Cent. Ry. Co.,
129 Md. 215, 98 Atl. 551;
A. F. Young & Co. v. Grand Rapids & I. R. Co.,
201 Mich. 39, 167 N. W. 11; 10 C. J. 303), a witness may not ordinarily state what would be a reasonable time for transporting goods in an action where damages are sought to be recovered for an unreasonable delay. (10 C. .J. 303.)
Complaint is also made that the court permitted plaintiff’s witness to testify that the agent of the railroad company promised to pay for the feed for the sheep while the sheep were in the stockyards at Pocatello. Appellant argues that this testimony tended to show a change of the conditions of the bill of lading and in effect amounted to a promise to give a rebate contrary to law. It was not shown that the employees of the railroad company making such statements had authority to make such a new contract or change the old one in this particular, nor that they had authority to make a binding admission as bearing upon the failure to transport within a reasonable time. Such testimony was therefore improperly admitted.
If the appellant was negligent and responsible for the delay it would be liable for the extra feed required.
(Groot v. Oregon Short Line R. Co.,
34 Utah, 152, 96 Pac. 1019;
5 Elliott on Railroads, 722;
St. Louis & S. F. R. Co. v. Cox, Peery & Murray,
40 Okl. 258, 138 Pac. 144.) Instructions Nos. 21, 22 and 25 were therefore as to this phase of the matter not incorrect. Instruction No. 22 should, however, in connection with the duty required of the carrier to provide stockyards, have contained therein the word “reasonably.”
(Lane v. Oregon Short Line R. R. Co.,
34 Ida. 37, 198 Pac. 671.)
Aside from the question of delay being reasonable or unreasonable, as bearing upon the liability of the railroad company to pay for the hay during the time that the sheep were in the stockyards at Pocatello, it was liable in line with instruction No. 22 for any loss or injury suffered by respondent because of the bad condition of the stockyards. The verdict, however, was general and it is impossible to determine what portion thereof the jury found as damages due to the injury to the sheep, and what part was for hay.
As indicated above the other errors complained of bear upon the instructions given and refused concerning the strike. Instruction No. 15 was as follows:
“You are instructed that if you find from the evidence' that there was an unreasonable delay in the transportation of plaintiff’s sheep from Adrian, Oregon, to Idaho Falls, Idaho, and that by reason thereof the plaintiff suffered a loss, the defendant cannot excuse such delay by the fad that a group of its employees, to-wit, about one hundred (100) switchmen operating in the railroad yards at Pocatello, Idaho, went out on a strike after the arrival of such sheep at Pocatello, and you are further instructed that if the unreasonable delay in the said shipment was occasioned by such a strike the employees of the said defendant were guilty of negligence, for which negligence, the defendant was liable to the plaintiff, if the plaintiff suffered a loss thereby.”
While a carrier is an absolute insurer of the final and ultimate delivery of freight consigned to it for transportation (10 C. J. 107; 4 R. C. L. 697, sec. 175), [6] it is, in the absence of a special contract, providing for the delivery at or within a certain time, only responsible for de
livery within a reasonable time. (10 C. J. 283; 4 R. C. L. 737, see. 206.) The bill of lading herein provided as follows: “The carrier does not undertake to transport said animals by any particular train, or within any particular time, or in time for any particular market.”
Under similar provisions it has been held that delivery .within a reasonable time was a compliance with-the contract. (10 C. J. 286;
Sterling v. St. Louis, I. M. & S. Ry. Co.,
38 Tex. Civ. App. 451, 86 S. W. 655;
John Vittucci Co. v. Canadian Pac. Ry. Co.,
102 Wash. 686, 174 Pac. 981;
Marshall v. McNear,
121 Fed. 428; note to
Stiles v. Louisville & Nashville R. R. Co.,
129 Ky. 175, 130 Am. St. 429, at 456, 110 S. W. 820;
Ecton v. Chicago, B. & Q. Ry. Co.,
125 Mo. App. 223, 102 S. W. 575.) What is a reasonable time depends upon the facts and circumstances of each’ individual shipment. (10 C. J. 286; 4 R. C. L. 738, sec. 207.)
The court’s instruction No. 14 that a strike was not an act of God or an act of a public enemy was correct, but in an action for damages due to delay an excuse for such delay may be shown other than acts of God or acts of the public enemy because the carrier must deliver only within a reasonable time. (10 C. J. 290.)
“While, save for the well recognized exceptions, a carrier is an insurer for the final safety and delivery of goods committed to its charge for transportation, in respect to the time of delivery it stands on the same ground with other bailees, and is responsible only for the exertion of due diligence. Consequently, if by accident or misfortune, not amounting to an inevitable casualty or the act of God, the transportation of goods is retarded, the carrier will not be responsible for such delay, if it has used due care and reasonable diligence, and the goods are finally safely delivered. ’ ’ (4 R. C. L., p. 741, sec. 210.)
While some eases have held that a strike was no excuse or justification for delay, the authorities so holding have in practically every instance contained the words similar if not identical with “where there was a failure on the part
of the carrier to promptly supply the places of the strikers.” (4 R. C. L., p. 744, sec. 212.)
If the strikers continue to be servants of the carrier the carrier is responsible for their negligence in refusing to work, under the doctrine of
respondeat superior,
but since the carrier is under the obligation of delivering only within a reasonable time, if the employees refuse to work, the question of whether the carrier exercised due diligence in endeavoring to continue the operation of its transportation system so as to deliver within the terms of the contract, namely, within a reasonable time is a question of fact. (10 C. J. 305;
Sims & Co. v. Midland Ry. Co.,
1 K. B. [1913] 103.) If the strikers cease to be the servants of the carrier the carrier of course is no longer responsible for their acts; it is, however, obligated to the shipper to deliver the goods within a reasonable time, and the question would be what diligence did the carrier exercise in seeking to secure new employees to take the place of those who had quit.
The question of whether it was a passive strike or a strike of violence would have a bearing upon the diligence to be exercised by the carrier but would make no difference in principle.
(The Richland Queen,
254 Fed. 668, 166 C. C. A. 166.) In other words, it could' not be said as a matter of law that a passive strike was no excuse while a strike of violence would be an excuse; if there were physical interruptions in the transportation of the freight due to wrecks or any other physical causes not amounting to an act of God or superinduced by acts of the public enemy whereby delay ensued, it would be a question of fact ,as to whether there was negligence, hence an unreasonable delay, or whether there was no negligence and hence not an unreasonable delay. Practically all the authorities hold that a strike of violence is a valid excuse for a delayed shipment, and their justification in so holding must be that the diligence shown to have been exercised by the carrier in the face of such violence, was reasonable; if then in a passive strike the carrier, without fault on its part, and after the exercise of every reasonable effort to secure others to take the place of tbe strikers, is unable to secure men, there is
no difference in principle. In a violent strike the violence, being beyond the control of the carrier, and preventing the operation of its system, is an excuse; in a passive strike if conditions other than violence produce the same result, why should not the carrier be likewise excused? The carrier is as much responsible for the carefulness of its employees in the discharge of their duties as it is for the continuance by them of the discharge of their duties, and so far as delay is concerned is no more responsible; therefore, if the carrier, where there has been a physical interruption due to the breakdown in machinery which might be charged to the negligence of the employees, may have such question as a question of fact passed upon by the jury, it would seem that it would have an equal right to have the question of its own diligence in attempting to secure other employees to take the place of those who had either refused to work or had absolutely quit the service passed on by the jury.
“As has been already stated, a failure on the part of a carrier ultimately to deliver in safety goods intrusted to it for carriage, owing to the violence or depredations of a mob, is not excused, since such acts do not come within the legal comprehension of the terms ‘act of God’ or ‘the public enemy.’ This circumstance and the application of the maxim,
respondeat superior,
have probably induced some courts in a few of the earlier decisions to hold that a carrier is liable for the inevitable delay and consequent damage to goods in transit caused by strikes of employees, armed mobs, or rioters. On the other hand, later authorities, recognizing that in the absence of special contract there is no absolute duty resting on a railroad carrier to deliver goods intrusted to it within what, under ordinary circumstances, would be a reasonable time, maintain the now generally approved doctrine that not only storms and floods and other natural causes may excuse delay, but the conduct of men may also do so.” (4 R. C. L., p. 743, sec. 212.)
While the instruction in the case at bar perhaps sought to so instruct the jury, it seems clear that this instruction removed from the jury’s consideration of what, if any, diligence the railroad company had exercised in endeavor
ing to ameliorate the effect of the strike upon the forwarding of the sheep in question. It is further apparent that such instruction can be given no other construction because of instruction No. 14 stating that a strike was not an act of God or an act of the public enemy and instruction No. 17, which advised the jury that the delay was unreasonable unless caused by an act of God, public enemy, authority of law, or inherent tendency of the sheep themselves. The defendant was liable if there was a strike, and due diligence had not been exercised by the carrier to overcome the strike; but if it had exercised such due diligence the delay would not have been unreasonable. In other words, the court improperly said that if the unreasonable delay was occasioned by the strike the defendant was liable. Delay may be excused and therefore not amount to an unreasonable delay, because of acts which do not reach to the dignity of or fall within any of the classes enumerated in instruction No. 17.
Though there is some apparent conflict in the authorities upon this proposition, we believe that upon a careful analysis they can all be distinguished or reconciled in accordance with the above theory.
In
Sherman v. Pennsylvania R. Co.,
21 Fed. Cas. 1279, No. 12,769, an armed mob in sympathy with the strikers was found by the court to be the real cause of the damage.
In
Central R. & Banking Co. v. Georgia Fruit & V. Exchange,
91 Ga. 389, 17 S. E. 904, the court held that the determination of the effect of the inability to promptly secure new men to take the place of strikers was not necessary to a decision of the case, holding, however, that the carrier had not exercised due diligence.
Haas v. Kansas City, Ft. S. & G. R. Co.,
81 Ga. 792, 7 S. E. 629, held that a strike of violence was an excuse.
The principle in
Indianapolis & St. Louis R. R. Co. v. Juntgen,
10 Ill. App. 295, is in accord with the theory announced herein:
“ ‘In this respect the common carrier stands on the same ground as other bailees, and may excuse delay in the delivery of goods, by accident or misfortune, although not inevitable,
or produced by the act of God. All that can be required of him in such an emergency is that he shall exercise due care and diligence to guard against delay, and that, if it occur without his fault or negligence, he shall omit no reasonable effort to secure the safety of the goods.’ ” (Hutchinson on Carriers, see. 330.)
Blackstock v. New York & Erie R. R. Co.,
20 N. Y. 48, 75 Am. Dec. 372, recognized that the carrier is not under the same absolute obligation to deliver goods in the usual time and to deliver them in safety. "While the court therein held that the strike of the carrier’s engineers was no excuse, it is apparent that it so decided on a question of fact.
The authorities relied upon in the Blackstock case,
supra,
are upon the question of
respondeat superior
and were not strike eases.
In
Jonesboro, L. C. & E. R. Co. v. Maddy,
157 Ark. 484, 248 S. W. 911, the question of the liability of the carrier because of a strike of its employees was held to be a question of fact for the jury, and if there are other expressions which would seem to hold that a strike is no excuse the authorities cited to such holding in the main do not sustain such a broad rule.
In
Railway Co. v. Nevill,
60 Ark. 375, 46 Am. St. 208, 30 S. W. 425, 28 L. R. A. 80, there was a total failure to deliver the goods, which of course is no authority on the question of delay only.
American Railway Express Co. v. Peninsula Produce Exchange,
142 Md. 422, 121 Atl. 240, held that the court properly refused to instruct that a strike was an absolute excuse and that therefore the shipper could not recover where there had been ample time to place the car on a delivery track before an accident caused a wreck which caused thé delay, quoting with approval 4 R. C. L. 744, which holds that the carrier is liable for delay consequent to a strike, where there is a failure to supply promptly the strikers; the question of the promptness of the carrier is therefore one of fact for the jury.
American Fruit Distributors of California v. Hines, 55
Cal. App. 377, 203 Pac. 821, holds that irrespective of a provision in the bill of lading “that the carrier should not be liable for loss occurring from strikes,” it is liable for delay on account of a strike unless it uses all reasonable efforts to procure men to run the trains and avoid delay and consequent damage.
In
Warner v. St. Louis-San Francisco Ry. Co.
(Mo. App.), 274 S. W. 90, there was no strike clause but the principle announced is in accord with
American Fruit Dist. of California v. Hines, supra.
An able discussion and review of many authorities bearing upon the principle involved herein is found in
Fiske Warren v. Portland Terminal Co.,
121 Me. 157, 26 A. L. R. 304, 116 Atl. 411, concluding that:
“A wharfinger who is also a common carrier is not liable to one who has tendered a cargo for unloading from a vessel and transportation, for the amount paid by him for demur-rage because of the delay of the wharfinger in unloading the vessel, due to a peaceable strike of his employees, if he exercised reasonable diligence in employing suitable employees and averting strikes.”
Panhandle & S. R. Ry. Co. v. Thompson
(Tex. Civ. App.), 235 S. W. 913, holds that where the employees suddenly abandon a carrier’s service, and, while offering no violence and causing no forcible obstruction to its business, simply refuse to work or further discharge their duties, for any delay in a shipment of cattle consequent thereon the carrier is liable if it fails to use reasonable diligence in supplying the places of the striking employees, and that the question of whether the carrier has used reasonable diligence is a question of fact for the jury.
The portion of instruction No.- 19 which stated that the run could be. made within 28 hours or less was an invasion of the province of the jury, improperly limited the defense available to defendant and was erroneous.
The judgment is ordered reversed and the cause remanded with instructions to the lower court to grant a new trial. Costs are awarded to appellant.
Wm. E. Lee and Taylor, JJ., concur.
William A. Lee, C. J., and Budge, J., dissent.