The herald., 1897-02-21
FROZEN FRUIT TREES
New Trial Granted BY the Supreme Court In
an Old SUIT


an Old SUIT
In the suit of r. W. Pierce, respon-
dent against the Southern Pacific COM
pany, appellant, taken on appeal from
the superior court of San Bernardino
county, from judgment in favor Of
plaintiff for SS,965, interest and costs
and from an order denying the motion
for a new trial, the supreme court has
reversed the judgment and order ap-
pealed from and ordered a new trial.
| In February, 1891, r. W. Pierce shipped
| from Apopka, county of Orange, Flor
ida, by the Florida Midland railroad
two carloads of orange trees consigned
| to Gulick Bros, Riverside. The first
carload was shipped Feb. 10 and was re-
! ceived at New Orleans by the South 0rn
| Pacific on Feb. 25. The second carload
was shipped Feb, "a and was received
by the Southern Pacific at New Orleans
March /. Each carload was shipped un-
der bill of lading signed K. w. Pierce
and by the agent of the FLORIDA Mid
land railroad" In the printed form of
the bills of lading was provided that the
articles and packages" Contents un-
known) were ''in their nature perish
able, fragile or otherwise susceptible to
damage" were shipped at a rate "lower
than the regular tariff charges of said
1t was agreed that the shippers should
ENSURE said Florida Midland Railroad
company and all lines over which said
shipment may pass between points of
shipment and destination, against
claims by loss or damage incurred by
reason of delay in transportation or any
other cause arising out of responsibility
as master over its agents or servants
(gross or wanton negligence eXcepted)
incident to the shipment, and that the
actual invoice cost at point of shipment
will be taken as measure of damages
to govern settlement of any damages
for which the carriers may be liable,
and that claims for loss damage or over
charge arising out of this shipment shall
be presented to agents of delivery lines
within one week after arrival of the
property at it's destination
The rate of freight on the trees was
$197A per one hundred pounds. When
the freight reached New Orleans the
Southern Pacific line was broken by Sc
we're storms and washouts in Arizona,
and was not likely to be available for
the transportation of freight for some
time. Under these circumstances, by
order of its general agent the trees in
question were sent north through Texas
to Denver, Col, thence to Ogden, Utah;
thence over its Central Pacific road to
Cotton Cal, whence the cars were de-
livered to the Southern California rail:
way and by 1t hauled to Riverside, ar
irving there on March II and 16. respect
lively. While in transit by the northern
route the trees were entirely destroyed
by freezing.
THE contention of appellant is" says
the supreme court, that the evidence
showed, without contradiction, that
more than two years elapsed between
the negligence complained of and the
hrfy ,r;v Of he cI1ft nd hot n
finding of the court against defendants
plea of the statute is contrary to the
evidence. We think this contention can
not be maintained"
The supreme court. in reviewing the
facts, continues: "Conceding that the
route (the northern) was a usual one,
there were special reasons for not send
ing goods which were liable to destruc-
ton by frost, over this northern route in
winter, where defendant might reason
ably have escaped the result which fol-
lowed. When defendants through
route via Fort Yuma was obstructed by
stress of weather 1t became its duty to
hold the goods until that, or some other
safe avenue was opened, or to notify the
consignees or consignors and take their
directions in the premises. The evil
dence shows they did this with another
car Of like orange trees at date little
earlier, and by direction of the con-
signees shipped them safely through by
the Atlantic and Pacific railroad. When
goods are marked in such way as to
indicate their character, or as to give
notice to the carrier that their safety
requires that they must be carried in
a particular manner, such marks must
not be disregarded.
I'm view of all the surrounding cir |
cumstances, we are of the opinion that
the defendant by failure to adopt one
or the other of the foregoing courses,
erred in Judgment and became liable to
plaintiff for the results which followed
The evidence fails to establish a case
of gross or wanton negligence, but still
does, we think, show want of that eX-
traordinary care imposed upon common
carriers of goods.
I'VE think the court erred in over
ruling the objection Of defendant to
proof Of the market value of the trees
at Riverside, instead of confinng the
inquiry to the cost or value of the trees
at the point of shipment in Floida. as
per contract, which with the the freight
paid was the measure of damages. For
this error we recommend that the 1udg
ment and order appealed from be re-
versed and a new trial ordered"