Opinion
May, 1916.
Alex. S. Lyman (William Mann, and Jacob Aronson, of counsel), for appellant.
Franklin Bien, for respondent.
This action was brought by plaintiff for damages to a shipment of goods from Detroit to New York. The goods were packed by plaintiff in a car at Detroit upon the tracks of and delivered for shipment to a connecting carrier of the defendant, the Michigan Central Railroad Company. The bill of lading, which is otherwise in the ordinary form, has a notation "Car to be opened by consignee." When the car reached the place of delivery specified, namely, the Franklin Street pier of the defendant, in this city, it was opened by defendant's employees, who, in accordance with their usual custom, proceeded to store the goods or otherwise handle them for delivery to the plaintiff's representatives.
Plaintiff's witnesses testified that in the course of this unloading of the car some of the goods were thrown about, trampled on and presumably damaged. Defendant gave evidence to the effect that the car was improperly and carelessly loaded by plaintiff's representatives at Detroit.
In order to make clear the issue to be determined by the jury, defendant presented three requests to charge, each one of which was correct, but all of which were declined by the learned trial court. The third request was that because defendant had filed with the interstate commerce commission rules and regulations which provided that defendant should unload all cars consigned to the Franklin Street station, the Michigan Central Railroad Company had no authority to vary such regulation. This request stated the correct rule as to the binding character of the tariffs and regulations filed with the interstate commerce commission. See Pennsylvania Railroad Company v. Puritan Coal Co., 237 U.S. 121; Boston Maine R.R. Co. v. Hooker, 233 id. 97.
However, the entire subject of the opening of the car by the plaintiff is entirely immaterial because the damage, if any, caused by the defendant resulted not from opening the car, but from the subsequent handling of the goods. As to this defendant's first request was that "if the jury find that the damage was due to the improper packing by the shipper, the defendant is not liable," and the second request (being the corollary of the first) "that unless the jury find that the damage occurred while the property was being unloaded by the defendant, the verdict should be for defendant." These requests stated correctly the only issues to be submitted to the jury, and particularly as they had not been clearly laid down in the main charge they should have been charged as requested.
As there must be a new trial, it may not be inept to call attention to the fact that a totally incorrect rule of damages was apparently permitted to be allowed in the proof. If plaintiff has been damaged by the negligence of the defendant, the correct measure of damage is the difference between the market value here of the goods in the condition in which they were when shipped and their market value in the condition in which they were delivered by defendant to plaintiff.
Guy and Cohalan, J.J., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.