McNEIL HIGGINS CO. v. OLD DOMINION S. S. CO., 235 F. 854

EVANS, Circuit Judge (after stating the facts as above). Defendant contends that the District Court correctly directed a verdict in its favor for two reasons: (

a) That the evidence conclusively established that the soaking which the coffee received before the water receded left it utterly valueless, and that subsequent delay, excusable or otherwise, resulted in no damage, (

b) That the evidence conclusively showed the carrier was not guilty of any want of ordinary care after encountering the storm. We are unable to agree with the defendant on either proposition. Whether the value of the coffee was totally destroyed by the rains at Peru and before the car could possibly be moved or the cargo unloaded is hardly debatable. The car reached Peru March 24th. It left Peru April 10th. , It left Cincinnati about April 20th and arrived in Chicago April 24th.

If, thereafter, it brought the sum of $101.01 over and above all freight charges and expenses of sale in Chicago, it is inconceivable that the coffee was valueless when it left Peru. The testimony of plaintiff’s witnesses was that the coffee would have depreciated in value by reason of the rain, but that, if it had reached a roaster within 3 or 4 days after being soaked, its value would have decreased only about 2 or 3 cents a pound; that, if it had reached a roaster 7 or 8 days after it had been submerged in water, there would have been a reduction in value of 3 or 4 cents a pound.

Its invoiced price was 14⅜ cents per pound. Indeed, it is obvious that the damage depended on the extent of the soaking and the promptness with which the coffee was properly cared for after being soaked. There also was competent evidence showing that Chicago was the most available market for the sale of coffee, and was a larger and better coffee market than Cincinnati. While these conclusions were challenged by defendant’s witnesses, we conclude that the question of any damages as well as the amount of damage was for the jury.

The defendant, however, further contends that the evidence fails to show that it was guilty of any want of care after meeting this storm at Peru. We conclude that this question was also one for the jury. The duty of a carrier to use reasonable care to protect the shipper’s property from damage, after the shipment has been overtaken by a storm that may be properly classed as

an act of God, is well established. Lang v. Pennsylvania R. Co., 154 Pa. 342, 26 Atl. 370, 20 L. R. A. 360, 35 Am. St. Rep. 846; Black v. C., B. & Q. R. R. Co., 30 Neb. 197, 46 N. W. 428, 4 R. C. L. § 191; Blythe v. Denver & Rio Grande R. R. Co., 15 Colo. 133, 25 Pac. 702, 11 L. R. A. 615, 22 Am. St. Rep. 403. Under such circumstances, a carrier is required to exercise at least reasonable diligence in endeavoring to save the cargo, or to prevent further loss.

When the plaintiff presented evidence that the car was consigned to Chicago, that the defendant shipped it from Peru back to Cincinnati on April 10th and there held it until April 20th, and then shipped it to Chicago, and that Chicago was a larger and bettter market for coffee than Cincinnati, it established facts, which, if unexplained, made a prima facie case of negligence against the carrier.

True, the carrier attempted to meet these facts by showing that its affairs were in such chaotic condition due to the flood and through no fault of its own; that the name of the consignee and the place of destination' were both lost unto it. But it appears that such information was obtainable, and whether the carrier was negligent in not promptly ascertaining the destination of the shipment and the name of the consignee was for the jury. It affirmative^ appears that such information was in the possession of tire conductor of this train, who at all times was in Peru.

It appears that the conductor kept a train book which contained “about the same as a bill of lading,” and gave Chicago as the destination of the car. The car was in a train that was obviously routed from east to west. The carrier also had available the permanent records, kept at Newport News, Va., and such records showed the destination of the car in question.

Finally, it appeared that the plaintiff frequently notified defendant’s agent that he had a car of coffee on the way, and the representative of the defendant notified plaintiff on April 10th (the day the car was shipped from Peru to Cincinnati) that said car was in the flood at Peru. These facts certainty made a jury question of defendant’s alleged negligence in sending the car to Cincinnati without consignee’s consent, and in failing to notify plaintiff of the location and condition of the car.

The defendant learned on the evening of March 24th that the top of the car was removed and that the coffee was certain to receive a soaking. Had the consignee been promptly notified of these facts, it is fair to assume that some arrangement might have been made to unload the car at Peru and avoid further loss. It appears that there was at least one concern in Peru engaged in roasting coffee. Even if there were none, there was no reason why consignee’s representatives might not have gone to Peru, only a distance of 120 miles, and personalty taken charge of the car.

There is evidence in the record showing that the car in question could have been moved from Cincinnati to Chicago at a date earlier than April 20th. Defendant’s employé admitted that he was instructed at Cincinnati on April 15th to forward the car to Chicago. Nevertheless the shipment was delayed until the 20th, and no attempt to explain this delay was made. Again, it affirmatively appears as an apparently uncontroverted fact that from and after March 26th the Wabash Railroad was carrying freight in and out of Peru toward Chicago.

There is also evidence tending to show that freight was shipped out of Peru on defendant’s lines in both directions as early as April 5th. It is true this evidence thus particularly referred to was neither conclusive nor in many respects undisputed or unexplained; but the weight of the evidence, as well as the inferences arising therefrom, was for the jury. Other questions presented by the defendant have been eliminated by a stipulation filed in this court. The judgment is reversed, and the cause remanded, with directions to the District Court to grant a new trial.