This is an action for damages, alleged to have been sustained by the plaintiff, through the negligence of the defendant, in failing properly to re-ice a refrigerator car loaded with cantaloupes, consigned by the plaintiff to a commission merchant at New York City. The defendant made a motion for a nonsuit, on the ground that, if the plaintiff sustained any damages, they were caused directly by the negligence of the plaintiff in allowing the refrigerator car in question to remain at Ashleigh, S.C. from Saturday morning until Tuesday night. At the conclusion of all the testimony the defendant also made a motion for the direction of a verdict, on the ground that the testimony shows conclusively that the said car, after leaving Ashleigh, contained ice, and was re-iced at all regular re-icing points between Ashleigh and New York City, to which place it was consigned. Both motions were refused.
The claim was for $179.80, the jury rendered a verdict in favor of the plaintiff for $119, and the defendant appealed, upon exceptions which will be reported. The *Page 251 defendant introduced in evidence what is known as the "I. C.C.A. — 6000" tariff regulation, which contains, among other things, the following:
"Note 3. If shippers delay ice cars at loading stations, more than twenty-four hours from the time they are set for loading, pursuant to their orders, carrier shall be relieved of all liability, for failure to keep such cars under refrigeration at loading point, and between loading point and the first re-icing station."
Upon the request of the defendant, his Honor, the presiding Judge, charged the jury as follows:
(1) "I charge you that, in order for the plaintiff to recover in this case, you must find from the testimony that the defendant was negligent and careless in failing to have the car in question re-iced while in transit as charged in the complaint."
(2) "I charge you that, if you find that the damage complained of was due to the plaintiff's own negligence, or caused by plaintiff in withholding the car in question a number of days, and that said car was partly loaded and held in this condition for a sufficient length of time for the loading to have become damaged, the plaintiff cannot recover."
(3) "I charge you that, even if you find that the defendant was negligent and careless, as alleged in the complaint, but at the same time find that the plaintiff was negligent and careless in the handling of his cantaloupes, in withholding the car, and plaintiff's negligence was the direct and proximate cause of the damage, your verdict should be for the defendant."
(4) "I charge you that, if plaintiff delayed refrigerator car at Ashleigh, S.C. more than 24 hours from the time it was first set for loading pursuant to his order, the defendant should be relieved from all liability for failure to keep such car under refrigeration at Ashleigh, S.C. and between this point and Columbia, S.C. the first refrigeration station." *Page 252
In other words, the appellant requested his Honor, the Circuit Judge, to charge that the defendant would only be liable for its failure to keep the car under refrigeration between the first and the last re-icing stations, but not at the loading point and between loading point and the first re-icing station, in case the plaintiff delayed the car at the loading station more than 24 hours from the time it was set for loading pursuant to his orders. The general charge of the presiding Judge was in harmony with the said requests.
The appellant's attorney argued the second, third, fourth and fifth exceptions together, and contended that they should be sustained, on the ground that there was no evidence of negligence or carelessness on the part of the defendant. These exceptions are overruled, for the reason that the testimony, in this respect, was conflicting and subject to more than one reasonable inference.
The sixth exception, assigning error on the part of the Circuit Judge in refusing to charge the defendant's first request, was properly overruled for the same reason.
The error assigned in the seventh and eighth exceptions is that his Honor charged the jury that, if the car was properly re-iced by the plaintiff, it had the same effect as if it had been re-iced by the defendant. The fact that a proper re-icing by the plaintiff would protect the melons from decay, as effectually as if it had been re-iced by the defendant, shows clearly that these exceptions cannot be sustained.
The ninth exception cannot be sustained, as the charge therein quoted was not prejudicial to the rights of the defendant, but, on the contrary, was too favorable.
For these reasons I dissent.
MR. JUSTICE WATTS concurs in the dissenting opinion of MR. CHIEF JUSTICE GARY. *Page 253