Joynes v. Pennsylvania Railroad
Joynes v. Pennsylvania Railroad
Opinion of the Court
Opinion by
The first amendment to the statement of claim was
The freight charges were collected by the appellant company under contracts of carriage which provided that the consignee should pay the freight according to the weights ascertained by any carriers thereunder. The official tariff stipulated that when it was “practicable” for agents to weigh potatoes they should be charged for át actual weight, but when it was not “pracr tical to weigh the same,” then estimated weights according to the schedule were to govern; and that, “estimated weights will apply in cases where actual scale weights cannot be ascertained.” The significant words used are thus defined in Webster’s New International Dictionary: “Practicable, that that may be practiced or performed; capable of being put into practice, done or accomplished; feasible. Practical, syn. — see practicable.” The bill of lading and the printed tariff taken together indicate that these words were used in their ordinary sense; they did not require any particular or elaborate construction on the part of the trial judge. He left it to the jury to say under the evidence whether the company could have accomplished the taking of the actual weight of the potatoes, — whether it
It appears that when potatoes are weighed in the cars, the actual weight per barrel is ascertained by dividing the total weight less the weight of the car by the number of barrels. This being so, it seems reasonable to assume that they could get the actual weight to almost as great a degree of certainty by weighing a number of barrels on hand-scales at the original point of shipment and accepting the average. However this may be, we are not convinced that, under the documentary evidence, the court was wrong in submitting all of the opportunities for weighing the potatoes to the jury, for, had the defendant company desired, it could have written into its schedule and contract the stipulation that unless track scales existed at the original point of shipment potatoes should be charged for according to estimated and not actual weights.
The trial judge was wrong in permitting the testimony concerning the contents of the record cards which indicated that some of the cars in question had been actually weighed at a station en route called Delmar. The cards themselves were the best evidence, and if the plaintiff desired to rely upon them to any extent he should have given notice to produce. But since there was ample other uncontradicted testimony to sustain a finding that it would have been practicable to weigh the potatoes, we feel that the-mistake can be treated as harmless error, and for that reason the
There was ample evidence to show that it was practicable to ascertain the actual weights, and that the freight payments were not voluntary. After considering in detail each of the matters called to our attention we are not convinced of reversible error; the assignments are all overruled and the judgment is affirmed.
Reference
- Full Case Name
- Joynes to use v. Pennsylvania Railroad Company
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- Syllabus
- Practice O. P. — Pleadings—Statement of claim — Amendments Carriers — Freight rates. 1. Amendments should be liberally allowed, and the test of their propriety is whether they introduce a new cause of action. 2. In an action against a railroad company to recover an alleged overcharge of freight rates, it is not improper to permit the plaintiff to amend his statement a second time, where it appears that the second amendment merely amplifies the first, is not inconsistent with the original statement, makes no real departure from the original cause of action, namely, the overcharge in freight rates, and adds nothing under which the damages could be increased. Carriers — Common carriers — Freight rates — Overcharge—Estimated and actual rates. 3. In an action against a railroad company to recover damages for an alleged overcharge of freight rates on potatoes, a verdict and judgment for plaintiff will be sustained where it appears that the official tariff of rates stipulated that when it was “practicable” for the potatoes to be weighed, they should be charged for at actual weight, but when it was not “practical” to weigh the same, then estimated weights according to a schedule were to govern, and the evidence shows that the railroad company had ample facilities at various points to weigh the potatoes in question both by hand-scales and track-scales. 4. In such a case it is proper for the court to admit testimony concerning the contents of record cards which indicated that some of the cars had been actually weighed at a particular station. The cards themselves would be the best evidence, and should have been called for if the plaintiff desired to use them; but if there is other ample and uneontradicted testimony to sustain a finding that it would have been practicable to weigh the potatoes, the error is a harmless one, and not a ground for reversal. 5. In such a case it is also harmless error for the trial judge to refer to the “weight” and “preponderance” of the evidence in spite of the fact that the defendant introduced no testimony. Practice, C. P. — Trial—Withdrawal of juror. 6. Where at a trial counsel asks the court to withdraw a juror and continue the case on account of an improper statement by a witness, and upon the court’s refusal rests upon bis exception to tbe-refusal, without requesting the court to warn the jury to disregard the answer, the appellate court will assume that all parties felt that no material harm had been done, and will not reverse the judgment because the trial judge failed to strike the answer from the record.