This suit was instituted by the appellee, George F. Diffendal, against the appellant, The Philadelphia, Baltimore and Washington Railroad Company, to recover damages for the *Page 502 injury which the plaintiff claims to have sustained by reason of the alleged negligence of the defendant in the transportation of a car load of peaches from Baltimore, Maryland to Washington, in the District of Columbia.
The plaintiff having obtained a verdict and judgment in the trial Court for $608 the defendant has brought this appeal to correct certain alleged errors in the rulings of that Court.
At the trial of the case in the lower Court the defendant offered no evidence whatever in defence of the action, but relied upon what it contends was a failure of proof, on the part of the plaintiff, to sustain the action.
The principal ground of this contention is that the burden is upon the plaintiff to show by direct testimony that the peaches were delivered to the defendant carrier in good condition.
It is not disputed that if this fact had been proven, and also that they had been delivered to the consignee at the end of the route in a damaged condition, a prima facie case would have been made out against the defendant, but it is insisted that until proof of delivery to the defendant carrier in sound condition, is affirmatively shown, the defendant is not called upon to offer evidence in its own defense. In support of this contention defendant cites the cases of Marquette, etc., R.R.Co. v. Kirkwood, 45 Mich. 51; Darling v. Railroad, 11 Allen, 295, and some others.
The important facts shown by the plaintiff's evidence are substantially as follows:
The appellee is the owner of a peach orchard located near Cave Town, in Washington County, Maryland, along the line of the Western Maryland Railroad.
On Saturday, September 30, 1905, he caused to be picked and loaded on a refrigerator car standing on a siding of the said railroad at Cave Town, the car having previously been placed there for his use, 483 carriers and 126 baskets of peaches of the Salway variety. A carrier is a crate holding six small baskets of peaches. *Page 503
The car load of peaches was consigned to John A. Davis and Son, Commission Merchants, Washington, D.C. No price had been agreed on for the peaches, but the price of $1.60 net, was guaranteed by Davis, over the telephone, for the carrier peaches, and more if the market would afford it. No price whatever was mentioned for the basket peaches, but the plaintiff testified that they would bring him 75 cents a basket.
That the peaches were carefully picked and handled is shown by the evidence. The loading of the car was finished about 6 o'clock Saturday evening September 30, 1905, and at that time the ice bunkers in the car were full of ice. The trap doors on top of the car, through which the ice was put into the bunkers, were tight, and it was a first-class dairy refrigerator car. The carrier peaches were of the first grade, highly colored round and perfect. The peaches in the baskets were just as good as those in the carriers but not so highly colored.
The plaintiff received no bill of lading from the Western Maryland Railroad Company at the time the goods were shipped, but a card way-bill was tacked on the car. Subsequently when plaintiff wanted to file his claim for damages, he obtained a bill of lading from the Western Maryland Railroad which he delivered back to that company when he filed his claim. The contents of neither the card way-bill nor the bill of lading, were introduced in evidence. Just at what hour the car left Cave Town over the Western Maryland Railroad does not appear, but it was shown by the witness, Hugh Scott, that the car was received at Fulton Station, Baltimore, on Sunday morning October 1, 1905, at 6.30 o'clock, and delivered to the defendant at 8.20. The Western Maryland Railroad being the initial carrier from Cave Town to Baltimore, and the defendant the connecting and terminal one from Baltimore to Washington. Lishear, a witness for the plaintiff, testified that he lived in Washington, that he was in the express business and did hauling for Mr. Davis, the consignee. That Mr. Davis notified him on Saturday *Page 504 evening that he would have a car load of peaches coming in on Sunday and for the witness to look out for them. Witness looked for them on Sunday and also on Monday. He looked for them half a dozen times. The peaches finally came in over the defendant's line on October 2, 1905, between 5 and 6 o'clock in the evening. Witness further testified that after he found them, he and Davis looked at the peaches and the top layer was pretty rotten and there was no ice in the bunkers.
Davis, the consignee, testified that he knew the peaches were coming in, through a couple of telegrams he received. When he finally discovered that the peaches had arrived, that is on Monday evening between 5 and 6 o'clock, he went over to the car, looked into the bunkers and found no ice in them. He opened the car and it was very hot. The peaches in the top row were very bad. Further down the peaches were better. He immediately ordered ice to be put into the bunkers. The next morning he started to sell the peaches and sold them to the best advantage. He finished selling them on the 6th. He further testified that peaches would keep in a refrigerator car, if well iced, as long as ten days. After the peaches are in the car, if the ice goes out, the effect is worse then if they had been out in the sun. He received $511.76 gross for the fruit, and after deducting freight and commissions, the net proceeds were $373.63. That on Monday, October 2, 1905, peaches, like plaintiff's sold in Washington at $2.25 per carrier, and $1 to $1.50 per basket.
We think there was evidence legally sufficient from which the jury could find 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 on Saturday evening at 6 o'clock, when the loading of the peaches was completed.
The finding of these facts was, under the circumstances, equivalent to explicit proof that the fruit was delivered to the initial carrier in sound condition.
The ordinary common law liability of a common carrier as *Page 505 to most commodities committed to its custody for transportation, is that of an insurer against all risks incident to the transportation, save such as result from the act of God or the public enemy, or the fault of the shipper, but with respect to perishable goods, which themselves contain the elements of destruction occasioning their own loss or deterioration, the carrier is not an insurer, but is required to exercise reasonable care and diligence to protect the goods from injury while in its custody as well as to deliver them with despatch to the consignee or connecting carrier. Hutchinson on Carriers, secs. 652 and 334; Brennison v. Pa. R.R. Co. 100 Minn. 102.
Where goods are transported by two or more successive carriers, it is the prevailing doctrine in this country, that if it be shown that the goods were delivered to the initial carrier in good condition, and that they were subsequently delivered to the consignee by the connecting and terminal carrier in bad condition, the presumption of law is, when such last named carrier is made defendant, that the goods were received by such carrier in the same condition they were delivered to the initial carrier, and the burden is upon the defendant carrier, of proving that such goods came to its possession in a damaged condition, by way of defense. Laughlin v. C. N.W. Ry. Co., 28 Wis. 204;Savannah, etc., Ry. Co. v. Harris, 26 Fla. 148; Penn. R.R. v. Naive 112 Tenn. 239 (79 S.W. 130); Beard v. Ill.Central, 79 Ia. 527 (7 L.R.A. 280); Cane Hill Co. v. SanAntonia, 42 Tex. Civil Appl. (95 S.W. 751); Elliott onRailroads, sec. 1450; 3 Hutchinson on Carriers, sec. 1348.
The reason of the rule, or rather the reason for the exception to the general rule, is that when a shipper consigns his goods to a line of connecting carriers to be carried to the point of destination, he of course loses all sight of and control over them.
From that time forward they are committed to the custody and management of the initial and connecting carriers, and these latter may each in turn, by the exercise of reasonable *Page 506 precaution, ascertain the condition of the goods at the time of accepting them from the last preceding carrier, and thus in case of loss be able to prove where the loss occurred; whereas the shipper has no means whatever of obtaining the necessary information, or witnesses to prove his case, except by summoning the employees of the carriers whose own negligence has caused the loss. One great difficulty that he would encounter in pursuing this course, would be to discover which of defendant's employees had knowledge of the facts. Should he be able to discover these, it would still be dangerous for the shipper to rest his case upon their testimony since the natural impluse of mankind would be likely to sway them, in narrating the circumstances, to state the occurrence in the light most favorable to themselves, in order to palliate their fault. Chicago, etc., R.R. Co. v. Moss,60 Miss. 1003 (45 Am. R. 425).
In Orem Fruit Company v. N.C. Ry. Co., 106 Md. 4, this Court cited with approval Meredith v. R. Co., 137 N.C. 479 (50 S.E. 1), to the effect that "on proof that a carrier received the goods in good condition the burden of proof rests on such carrier to show delivery in the same condition to the next carrier, or to the consignee, such proof being within its power."
In that case the initial carrier was sued jointly with one of several connecting and intermediate carriers, and this Court was discussing the question with respect to the burden of proof as applied to the initial carrier as a defendant, under a special contract to re-ice the car at certain designated places which the defendant had failed to do. 6 Cyc., 479; Mich. Central v.Myrick, 107 U.S. 102.
In Gwynn Harper Manfg. Co. v. Carolina Central R. Co.,128 N.C. 280 (38 S.E. 894), the Court said: "This Court has repeatedly held that among connecting lines of common carriers, the one in whose hands the goods are found damaged is presumed to have caused the damage and the burden is upon it to rebut the presumption."
In Cane Hill, etc., v. San Antonio Ry. Co., 42 Tex. Civil *Page 507 Appeals (95 S.W. 751), it was held that "where goods are delivered to a common carrier to be carried by a series of connecting lines to the point of destination, and the goods are delivered in a damaged condition to the consignee, a primafacie case is made out against the terminal carrier alone."
In Shriver v. Railroad, 24 Minn. 506, the Court said: "Where goods are delivered to be transported over a line composed of several connecting carriers, it will, in the absence of anything to the contrary, be presumed that they reached the last carrier in the same condition in which they were delivered to the first."
Any apparent difference of opinion in regard to the application of the rule, as shown by the aforegoing expressions of the Courts, is explained by an examination of the facts of each case.
As was said in the case of Meredith v. Seaboard Air LineRy., cited in Orem Fruit Co.'s Case, supra: "The same reason which requires the last carrier to show performance of duty applies with equal force to the first — that the source or means of proving the exculpatory facts are peculiarly within its knowledge and not otherwise open to the plaintiff."
This is the controlling principle governing the application of the doctrine, and the doctrine itself rests upon grounds of general convenience and public policy, and places no unreasonable burden on the defendant carrier. Brennison's Case, 100 Minn. 102 (110 N.W. 362); Chicago v. Moss, 60 Miss. 1003.
In this case when the defendant carrier, accepted the refrigerator car containing the peaches, it had implied notice, from the character of the car itself, that the goods in the car were of a perishable nature, and by accepting the car the carrier undertook the duty of exercising due care and diligence to protect the goods and to deliver them at their destination within a reasonable time. Elliott on Railroads, secs. 1449 and 1475;New York Ry. Co. v. Cromwell, 98 Va. 227 (35 S.E. 444);Beard v. Railway Co., 79 Ia. 518; 1 Hutchinson on Carriers, sec. 334. *Page 508
Failure to properly ice the car, or to deliver the same properly to the consignee at Washington, would be such default on the part of the carrier, as to render it liable for damages resulting thereby to the fruit. Brennison's Case, supra.
If the defendant desired to ascertain the condition of the fruit or of the ice tanks at the time the car was delivered to it at Fulton Station, it had ample opportunity through its agents and servants to do so, and if it could show that the fruit was then in a damaged condition, such evidence would tend to exonerate it from blame.
But the defendant offered no evidence whatever, and the plaintiff's evidence was clear that when the car reached Washington late on Monday evening, there was no ice in the bunkers, and on opening the car it was found to be very hot inside; the peaches at the top of the car being badly damaged.
We are unable to accept the doctrine of the cases cited by defendant in support of its contention in this respect, and under the circumstances of the case, as presented by the record, we must hold that the burden was upon the defendant to show that those conditions were due to no neglect or default on its part.
The first and principal contention of the defendant cannot therefore be sustained.
2. It was also contended by defendant's counsel that the evidence of Hugh Scott, a witnesses for the plaintiff, as to the time when the carload of peaches arrived at Baltimore, and was there, at Fulton Station, delivered to the defendant, was not admissible, because witness read in part from a record book kept by himself. So far as the witness used the book to refresh his recollection, merely, his testimony was competent, but the book itself was not proper evidence to go to the jury under the circumstances.
The error in this respect was, however, harmless as the witness testified that of his own knowledge, independent of the record, after refreshing his memory thereon, the car came into Fulton Station at 6.30 on Sunday morning, and that it *Page 509 was delivered to defendant at 8.20. He omitted to say whether the delivery was made at 8.20 a.m. or 8.20 p.m., but under the circumstances we do not consider this omission fatal to the plaintiff's case. As the witness had just stated that the car came in at 6.30 in the morning, the jury may very properly have inferred that the hour of 8.20, named by him as the time when the car was delivered to the defendant, had reference to the morning also. But even if not delivered to defendant until 8.20 p.m. the burden would still be upon the defendant to show that the peaches were then in a damaged condition in order to exculpate itself from blame.
3. The defendant's third exception is to the ruling of the Court admitting the evidence of the witness Davis in regard to the market value of first-grade Salway peaches, on the Washington Market, on Monday, October 2d 1905. The ground of this exception is, that there was no evidence in the case to show that the defendant had notice that the peaches were intended for Monday's market, and no evidence that it could by the exercise of due diligence have delivered the peaches at their destination in time for the market of that day.
Under the circumstances of this case, we do not deem it essential that the plaintiff should have affirmatively proven that the defendant had actual notice that the freight was intended for Monday's market.
It became the implied duty of the defendant in accepting the carload of fruit for transportation to use due diligence to deliver the same at its destination within a reasonable time (Hutchinson on Carriers, sec. 652), and for a breach of this duty resulting in loss to the plaintiff, the defendant was responsible in damages, whether the loss was occasioned by a fall in the market price, or by damage to the goods themselves, or by a combination of the two causes. It was so held in Collard v.Ry. Co., 7 H. N. 79; besides, the defendant had such notice as may be reasonably inferred from the circumstances of the case and the course of business. B. O.R.R. Co. v. Whitehill,104 Md. 311. *Page 510
As to the exercise of due diligence on the part of the defendant, in the absence of direct proof, the Court may take judicial notice of the location of two such large and important cities as Baltimore and Washington, as well as of the distance between them, and of the approximate length of time required to transport a carload of goods from one city to the other by the modern means of conveyance. 16 Cyc. 863.
The lower Court no doubt took such notice and deemed it entirely feasible for the defendant to have carried the car from Baltimore to Washington in time for Monday's market, and as the defendant has failed to offer any exculpatory evidence whatever on its part, we are not prepared to say that the lower Court committed error in allowing the evidence to go to the jury.
4. What we have said practically disposes of the special and general exceptions to the granting of all plaintiff's granted prayers, which we will ask the reporter to set out in his report of this case.
The plaintiff's fifth prayer concerning the measure of damages ought to have been more explicit as to the manner in which the jury should ascertain the amount of plaintiff's loss, but it is apparent that the defendant was not injured by this defect.
It was understood before the peaches were shipped from Cave Town that the plaintiff was to have $1.60 net per carrier for the peaches in carriers, and more if the market would afford it. The plaintiff also testified that the basket peaches were worth 75 cents per basket, to him.
The sum allowed by the jury to the plaintiff, added to the net amount received by him from the sale of the damaged fruit, only yielded him, in the aggregate, 75 cents per basket for the basket peaches, and $1.67 per carrier for the carrier peaches, with interest; or but a trifle more per crate than the minimum price he was to receive for them according to his original understanding with the consignee. The plaintiff was entitled to be compensated to the extent of his loss, and *Page 511 we cannot see that the jury was misled by the instructions as granted.
Where an erroneous instruction results in no injury to the appellant, this Court will not reverse the judgment. B. O.R.R.Co. v. Pumphrey, 59 Md. 402.
Finding no reversible error in the rulings of the lower Court, the judgment will be affirmed.
Judgment affirmed with costs.
BRISCOE, PEARCE and BURKE, JJ., dissent.
A motion for a re-argument was made, and in overruling the same,