Court rendered upon the verdict of the jury, they would be allowed to file an appropriate motion to have the same again reviewed. Upon the hearing then had, I concluded that the question of whether the shipment was in the nature of a re-consignment or a new shipment, from Phoenix to Long Island City, was a question of law for the Court, inasmuch as the facts surrounding what happened at Phoenix were not in dispute in the testimony, that therefore all questions of fact had been eliminated. The interrogatory in regard to whether or not there was negligence on the part of the rigger and the railroad in the preparation of the equipment for shipping was answered in the negative, therefore the judgment should be in accordance with that finding. The element of damage to the equipment fixed by the jury was accepted without dispute. The Court then determined, after arguments and briefs had been presented, that the shipment and what happened at Phoenix was in the nature of a reconsignment and not a new shipment of the property from Phoenix to Long Island City and entered judgment absolving Charles Benjamin, Incorporated from liability and awarding damages in the amount fixed by the jury to the plaintiffs against the defendant Reading Company. The defendant Reading Company has filed a motion to set aside that judgment and enter a judgment for the defendant, which motion in effect brings up the same matter which was considered shortly after the close of the trial.
The plaintiffs have also filed a motion to set aside the judgment and to grant a new trial against the defendant Charles Benjamin, Incorporated, upon the ground of newly discovered evidence. The latter motion is supported by affidavits as to what is called 'newly discovered evidence' but, in my view, it is not sufficient to justify the Court in sustaining it. All the matters pertaining to the preparation of the shipment and what, if anything, occurred between Philadelphia and Phoenix in connection with that shipment were available to both parties before the trial. The motion will accordingly be overruled.
As to the first above mentioned motion, I shall adhere to my original conclusion that the judgment was properly entered against the defendant Reading Company upon the ground that the transaction at Phoenix was in the nature of and in substance a reconsignment rather than a new shipment which, under the Transportation Act makes the original carrier responsible. I shall not discuss in detail the many cases, both those before the I.C.C. and the Courts, which have passed upon similar transactions and in which they have at times seemed not to be in complete harmony. It seems, however, by a rather consistent line of authorities decided by the Commission itself that they have construed the term 'reconsignment' in a broad sense and that it should be so interpreted unless there is a complete interruption in the shipment which makes it impossible or inequitable to apply the reconsignment rule. At Phoenix there was no unloading of the shipment, which would be one of the principal grounds to prohibit reconsignment, and the property was at all times in possession of the carrier at that point. The mere matter of making out new bills of lading has no particular significance because it was shown that the consignee and agent of the plaintiffs did whatever he was told and signed whatever papers were presented to him by the Railroad Company without knowing anything in regard to their legal significance. The defendant Railroad Company strenuously argues that the rules and regulations concerning 'breaking bulk' and 'back-haul,' as shown by the evidence in the case, prohibit the application of the rules and regulations concerning reconsignment but as these rules have been explained, I do not consider them to be construed here as standing in the way of adopting the theory of reconsignment. It would serve no useful purpose in this memorandum, and neither is the time available, to discuss at length the theories which have been proposed by counsel upon their respective motions or the mass of authorities which have been submitted to the Court in their trial briefs. This is a case which will probably find its way into the higher Courts on account of the principle rather than the amount involved.
It appears also that the plaintiffs, being in a quandary as to where they stand in their effort to secure compensation for damage to their property, have likewise brought a suit in the Courts of New York to recover from the receiving carrier there which, of course, is a precaution against a determination that the shipment from Phoenix to Long Island City was in the nature of a new shipment and therefore the initial carrier at Philadelphia would not be liable unless proof were shown that the damage occurred between Philadelphia and Phoenix and there was no evidence introduced in this case which justifies such a conclusion.
It is to be hoped that there may be come collaboration between the Courts by which the interests of the plaintiffs may be protected until the principal point in controversy can be determined. That principal point is whether or not the shipment was a reconsignment within the terms of the Transportation Act.
For the reasons stated the motion of defendant Reading Company to set aside the judgment and enter judgment in its favor is likewise overruled. The Clerk may enter orders in accordance with the rulings made in this memorandum unless counsel desire to have signed orders. In that event, counsel may prepare orders and submit them to me for the purpose of execution.
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