
    PENNSYLVANIA RAILROAD COMPANY vs. H. B. WALKER et al.
    
      Gamers — Perishable Freight — Delay—Failure to Ice — Prayers and Instructions.
    
    The delivering carrier is liable for such delays only as occur on its own line. p. 326
    Plaintiff in a suit against a carrier must prove delay, before the carrier is under the burden of justifying its time, or of proving that the delay did not cause the damage to the shipment. _ p. 326
    . In an action against a carrier for damage to a shipment of cabbage, the refusal of an instruction that there was no legally sufficient evidence under the pleadings that the damage was due to any delay in transportation was erroneous, there being no evidence that faster time could have been made on the journey or at any stage thereof, and evidence that the car was one day in the yard at a junction point not itself showing that there was undue delay at that point in getting trains broken up, and cars of perishable freight iced, made up, and moved on again. pp. 326, 327
    The delivering carrier is liable only for damage to a shipment caused on its own line. p. 328
    Where freight is of such a nature that it might deteriorate from a cause not within the carrier’s control, the carrier is not an insurer of arrival in good condition, but is liable only for failure to use reasonable care. • p. 328
    If freight was shipped in good condition, loaded and ready to stand the trip if kept iced with due care, damage found on arrival at destination is chargeable to the delivering carrier, which has access to all the facts, unless and until it can show that it did exercise due care. p. 328
    In an action for damage to a carload of cabbage, in view of evidence that there was no ice in the car’s bunkers on its sltrival at destination, it was proper to refuse a prayer that if the jury found that the only icing station, between the junction point at which defendant received the car and its destination, was at a point named, and that the defendant at that point iced the car to its full capacity and properly closed it, and delivered it the next morning at its destination, defendant was not liable, was properly refused as assuming that icing at that station alone was sufficient. pp. 328, 329
    WEere a carrier undertakes to haul refrigerated freight, it is required to provide the icing ordinarily needed for such shipments. p. 329
    In an action for damage to a carload of cabbage, a prayer that if defendant carrier iced the car to its full capacity at a certain point, the only icing station on the route, and properly closed the car, and delivered it the next morning at its destination, defendant was not liable, even though the car was discovered on its arrival to be without ice, was improper, as instructing the jury as to the verdict upon finding the truth of two irreconcilable facts, the sufficient icing of the car and its arrival without ice, and as therefore confusing. pp. 329, 330
    
      Decided February 4th, 1925.
    
    
      Appeal from Jthe Superior Oourt of Baltimore City (Stein, J.).
    Action by H. B. Walker and others, co-partners trading as H. B. Walker & Sons, against tire Pennsylvania Eailroad Company. From ia judgment for plaintiffs, defendant appeals.
    Eeversed.
    The causa was argued before Bond, 0. J., Pattison, TTrner, Adkins, Oeeutt, Digges, Parke, .and Walsh, JT.
    
      Ralph Robinson, for the appellant.
    
      J. Purdon Wright, with whom Was Wendell D. Allen on the brief, for the appellees.
   Bond, C. J.,

delivered the opinion of the Court.

The plaintiffs below, now appellees, were the purchasers of a car load of bulk cabbage, f. o. b. iSkaneatele®, Hew York, to be shipped over the Sfcaneateles Eailroad as initial carrier, and over the Pennsylvania Eailroad as delivering carrier, to Baltimore. The cabbage arrived in Baltimore spoiled, and there was some testimony that no ice was found in the car on arrival, and the delivering carrier is sued for the damage.

The car was loaded on the tracks of the initial carrier on ■September 19th, 1921, without ice. On the hill of lading was written: “Ice at first icing station, and keep iced to destination; no ice in hunkers when loaded; vents closed.” The shipper produced testimony that the cabbage itself was fresh and in good condition when loaded. The testimony produced by the defendant carrier, with' its records of the car, was that the car was turned over to it at Hewbury Junction, Hew York, on September 22nd, .and was iced there for the first time. On the morning of the 23rd, at 6 A. M. it reached the yards at Enola, near Harrisburg, Pennsylvania, where freight trains from the several direction’s are brolcen up, and the cars redistributed and made np for further conveyance to Hew York, Philadelphia-and B-altimore. At Enola there is another icing station, an emergency station, Which is the only one along the route of this shipment be^ tween Lewbury Junction and Baltimore. This particular car was found to need more ice, there being only 5,000 pounds left in it, and its capacity being over’ 11,000 pounds; and it w.as ordered to he iced ’and was put in place for icing at 2 P. M. It was then loaded with ice to capacity and left Enola at 7.30 P. M. for Baltimore. The next mloming it arrived at Baltimore and was inspected about 8 o’clock. The car was found still sealed with the seals, of the Skaneateles Railroad, the initial carrier, and the railroad inspector reported its hunkers still about three-fourths full of ice, and all properly closed up. The carrier also introduced iu evidence a letter from an -adjustment agency, which had inspected the car for the consignee and had filed a protest and given notice of claim, now notifying the carrier to> cancel the protest and notice, as their “investigation showed that there was no carrier liability connected with the move of this car.” But the inspector of the agency testified at the trial that he found the car without ice on arrival, as already stated, with pings out, traps open and under ventilation; and he produce his records, made at the time, ,as the basis of his testimony.

Two rulings only have been argued on appeal. The first was the rejection of a prayer of the defendant that tibe jury be instructed that there was no legally sufficient evidence under the pleadings that the damaged condition was due to1 any delay in the transportation. This prayer was rejected along with .all other prayer’s offered, the case having been given to the jury without instructions.

We do not find, any evidence of negligent delay, apart from all question as to icing. The defendant in this situation could be held liable only for delays on its own line, and it is incumbent upon the plaintiff to prove delay, before the carrier is placed under the burden of justifying its time, or of proving that the delay did not cause thei damage. Hoffman v. Cumberland R. R. Co., 85 Md. 392, 394; Shockley v. Penn. R. R. Co., 109 Md. 123, 128; N. Y. & Baltimore Trans. Co. v. Baer, 118 Md. 73, 78; Penn. R. R. v. Clark, 118 Md. 514, 518. The details of the time of transportation in this ease were given, but delay is relative, and the record contains no evidence that faster time could be made on the journey or .at any stage of it. It is argued that the oar was held in the yards at Enola unnecessarily long. One whole day might well strike a jury as too long for tbe icing, reclassification and forwarding from that place, but tbe jury would have no basis for comparison, and no actual information on the subject. For all that appears in the record, .a day might, upon full infortnation, be found to be the minimum of time for getting trains broken up', and oars of perishable freight iced, made up, and moved on again. For l-ack of any basis for estimating reasonable dispatch, the prayer would seem proper and, in view of the likelihood that a jury, without realizing the .amount of work and time necessary for getting the ear iced and put on its way again at Enóla, might speculate, aud render a verdict, upon the length of time the ear was there, the prayer may have been materially necessary to' tbe presentation of the defendant’s case for decision. In this connection it must be observed that the plaintiff offered evidence of the time ordinarily consumed in the run from Sfcaneateles to Baltimore, for comparison with the time consumed in this instance, but the evidence was excluded on objection. The ruling has not been argued. We cannot,.of course, assume that the evidence would have, shown the time of this shipment to have been unusual, and if it had done so, then in order to determine whether there had been negligent, delay for which this defendant’ might be held liable, there would remain to be considered the evidence adduced to show that most of the time here was taken up on the road of the initial carrier, for Whose negligence this defendant would not he liable. O-ur conclusion is that there was reversible error in the rejection of the defendant’s third prayer, and that it can only he corrected by a retrial.

The other ruling argued is that upon a prayer of the defendant, the fifth, for an instruction to the jury that if they found from the evidence that the only icing .station .along the route between Newbury Junction and Baltimore was at Enola, and that the defendant iced the oar’ to. its full capacity there, and properly closed it, .and delivered it next morning at Baltimore at the time specified, then the delivering carrier could not be held liable for damage to the cabbage even though the jury should also find that upon the consignee’s examination the car’ was discovered to be without ice.

We see only one defect in the prayer. It fails to include among the elements which would together establish the fact of due care on its part, that the provision for icing at Enola would ordinarily be sufficient to take care of icéd freight which is received in good condition for carriage from New-bury Junction to Baltimore. The case is unusual because the proof by the plaintiffs themselves showed at the outset the loading of the ear without ice, and travel in that condition before the defendant carrier received it. This carrier is, of course, liable only for damage caused on its own line. N. Y. & Baltimore Transportation Co. v. Baer, 118 Md. 73, 79. And as the freight was of such a nature that it might deteriorate from a cause not within the control of the carrier, the carrier was not an insurer of arrival in good condition; but was liable only for failure to use reasonable care. Penn. R. R. Co. v. Clark, 118 Md. 514, 518; Higgins v. C. R. & Q. Co., 135 Minn. 402, L. R. A. 1917 C. 507. If freight is shipped in good condition, loaded and ready to stand the trip if kept iced with due care, damage found on arrival at destination is chargeable to the delivering carrier, which has access to all the facts., unless and until it can show that it did exercise due care. N. Y. & Baltimore Trans. Co. v. Baer, supra, page 59; P., B. & W. R. Co. v. Diffendal, 109 Md. 494, 505. But if, in this case, there had been no testimony of arrival at destination without ice, that is; if the case of the plaintiff had depended merely upon the fact of deterioration of the cabbage, it might he questioned whether the carrier would be placed under this burden of disproof, when the very bill of lading with which the plaintiffs opened their case shows the starting without ice on the initial carrier’s road, which would seem to be at least a possible cause of damage beyond the defendant carrier’s control and for which it would not be liable. It will be noted that in the ease of P., B. & W. R. Co. v. Diffendal, supra, page 504, the facts which were held to be sufficient to show original shipment in good condition .and, therefore, to place the burden of proof on the delivering carrier, were “that the peaches were placed in the car Cave Town in good condition, that the car was a good refrigerator car, and that the ice bunkers were filled with ice * * * when the loading of the peaches .was, completed.” 'And see Beard v. Illinois Central R. Co., 79 Iowa, 518; Texas etc. R. Co. v. Kelly, (Tex. Civ. App.), 74 S. W. Rep. 343. But if the jury accepted as true the testimony that no ice was found in the bunkers of this ear on arrival at Baltimore, then they had before them a possible contributing cause of damage at this end, and the delivering carrier would, we think, be under the necessity of rebutting liability for the damage by proof that, despite the lack of ice a,t Baltimore, it provided all the icing that such a shipment would ordinarily require, or that the damage would have resulted in this instance notwithstanding a failure to do so. The carrier’s fifth prayer asks that icing at the only icing station maintained on the route of this shipment be held due care. It is true, as contended in support of the prayer, that the defendant, could not he required to give .this one dar extraordinary treatment; with icing at places along the road where icing is not ordinarily needed. But as it undertook to haul refrigerated freight over this trip, it was required to provide the icing that is ordinarily needed for such shipments. And its fulfillment of this duty was an essential to due care, which the fifth prayer assumes instead of leaving the jury to find. As an assumption it may have strong foundation, but it can hardly be said that the court should have taken it as the basis of its instruction to the jury. We cannot say, therefore, that the rejection .of the prayer was erroneous. It may be added that if it was beyond question that the icing shown by the carrier’s records and described in the prayer was sufficient to keep the ear iced to destination, then the fact, that there Was no ice on arrival at destination (if the jury so found), would be irreconcilable, .and the prayer mighit well have been rejected as confusing in instructing the jury as to> the verdict upon finding both facts true. We conclude we should mot disturb the ruling- on this prayer.

Judgment reversed and new trial awarded, with costs to the appellant.  