White v. Minneapolis & Rainy River Railway Co.

O’Brien, J.

On November 29, 1905, plaintiff delivered to defendant for carriage a carload of vegetables. The vegetables were in an ordinary box car belonging to a connecting company, and at the time of the delivery were transferred from the tracks of that company to defendant’s yard at Deer River. On the same'day plaintiff had assembled a large crew of men at Deer River, for whom and his general camp supplies he desired passage to a point upon defendant’s line of road where he was about to commence logging operations. About this time a portion of defendant’s track crossing a swamp, or what is known in local parlance as a “muskeg,” became submerged, ice formed above the rails, and traffic was suspended until a temporal^ track was constructed around the swamp. This occupied four days, and when the vegetables arrived at the point of destination they were found to be frozen. Plaintiff’s first cause of action was for the value of such portion of the vegetables as were destroyed by freezing. By the second cause of action plaintiff sought to recover the wages paid the crew of men compelled to remain idle at Deer River, and the cost of the board and lodging furnished them during that period. The jury gave plaintiff a verdict.

The complaint alleged the defendant was a railway corporation *170 engaged in the carriage and transportation of freight and passengers for hire. The answer admitted this allegation, so that, while it is quite apparent from the record that the defendant company controls a rather meagerly equipped railway, it must,'under the pleadings, be held to the responsibilities of a common carrier.

The plaintiff introduced evidence to show that the freight was unconditionally delivered by him to the defendant for transportation, while the defendant claimed it fully informed the plaintiff of the sinking of its track, and received the freight upon condition that it would be required to transport it only when its roadway was repaired sufficiently to enable it to operate trains upon it, and that it did not undertake to care for the perishable freight in the meantime. There was testimony that the temperature lowered during the time the freight was awaiting transportation, and plaintiff made some attempt, by maintaining an oil stove in the car, to keep the vegetables from freezing, so that under all of the evidence it became a question for the jury to say what the contract was and whether or not the defendant carried out its undertakings.

The defendant insists that the sinking of its track was an overwhelming and unexpected occurrence which it could not prevent, and that it was therefore relieved from responsibility by a catastrophe which is to be attributed to the act of God. The plaintiff, upon the other hand, claimed that the track was submerged because of the insufficiency of the roadbed supporting it. The court correctly instructed the jury as to the character of a catastrophe which is to be attributed to the act of God, and, while we greatly doubt that the evidence in this case would support a finding that the sinking of defendant’s track was without fault or negligence upon its part, that question is not before us, because of the adverse finding upon that point necessarily implied by the verdict of the jury.

Defendant assigns as error that portion of the charge in which it is stated that the defendant became an insurer of the freight intrusted to it from the time it was received, and that it was its duty to deliver the property to the plaintiff at the point of destination in as good condition as it was when received. This is a correct statement of abstract law, but, as applied to this case, would, if standing alone, *171 be so insufficient as to necessarily be held, erroneous. A railway, by its contract to safely carry, does not insure perishable freight against the effect of temperature encountered by it during the period ordinarily required for its transportation, unless the circumstances under which the contract of carriage is made are such as to imply an undertaking to that extent on the part of the carrier. Brennisen v. Pennsylvania R. Co., 100 Minn. 102 , 110 N. W. 362 .

And this would be particularly true in such a case as this, where the assumption would be that the contract was to haul the property in the car transferred to defendant’s yard. Therefore, if this carload of vegetables had been promptly transported, we would have difficulty in sustaining the verdict, even though the vegetables were frozen during transit. But the car remained in the exposed yards for four days, during all of which time defendant must be held to have had possession of it and its contents, and, while the evidence shows that plaintiff took some steps to keep the vegetables from freezing, this did not relieve the defendant from its duty to use reasonable care to protect the freight it had accepted. The court correctly instructed the jury as to defendant’s duties during this delay, and, taken as a whole, the charge was free from prejudicial error, particularly in view of the fact that no inconsistency in it was called to the attention of the court during the trial.

With reference to the second cause of action the court instructed the jury that it was the duty of defendant to transport the plaintiff and his men within a reasonable time, and that if the defendant negligently delayed doing so the plaintiff was entitled to recover the damages which he sustained by reason of such delay. The rule for computing such damages was not stated in the charge, but evidence was received as to the aggregate wages paid the men and the amount paid for their hoard and lodging during this time. That, we think, was the correct rule, and the verdict rendered appears to be within an amount to be so arrived at.

The evidence as to the payment by plaintiff of the freight charges, and of conversations with defendant’s agent in charge of its business at the place of shipment, was properly received.

Order affirmed.