The opinion of the court was delivered by: Knoch, District Judge.
This action having been tried by the Court without a jury, the
Court having had the benefit of argument of counsel on briefs,
being fully advised in the premises, on the whole case, makes the
1. Plaintiffs are individuals and citizens of the State of
Illinois engaged in the business of buying and selling perishable
commodities at wholesale in the City of Chicago, Illinois.
2. Defendant and its connecting carriers are common carriers by
rail performing transportation services for hire in interstate
commerce between points in the States of California and Illinois.
3. Between July 1, 1952, and July 1, 1953, plaintiffs were the
receivers, or consignees, in Chicago, Illinois, of 63 shipments
of perishable goods which were originated at 8 different shipping
points in California. These points included the stations of
Salinas, Mendota, Santa Maria, Biggs, Huron, Oceano, San Joaquin,
and Dos Palos, California. The Southern Pacific Railroad was the
originating carrier for all the shipments except two from Santa
Maria, California, which originated on the Santa Maria Valley
Railroad. The defendant, Chicago, Burlington & Quincy Railroad
Company (hereinafter referred to as the "Burlington") was the
delivering carrier for all 63 shipments. The Chicago, Rock Island
and Pacific Railroad (hereinafter referred to as the "Rock
Island"), the Denver and Rio Grande Western Railroad (hereinafter
referred to as the "Rio Grande"), and the Union Pacific Railroad
were the connecting or "bridge" carriers for the 63 shipments.
Individual participation by said bridge carriers in the carriage
of the 63 shipments depended upon the point of origin and the
route selected by the shipper.
4. Each of the 63 shipments traveled distances ranging from
2,100 to 2,400 miles between origin and destination. At various
places on the Southern Pacific, the Rio Grande and the Union
Pacific, it was necessary to carry the 63 shipments over and down
steep grades which required the furnishing of additional motive
and braking equipment, depending upon the length, weight and
consist of the trains in which they moved. At various places on
all the railroads, all 63 shipments were subject to regular,
anticipated terminal delays in order for the trains to be
classified and the cars properly interchanged. During these
terminal delays, the cars
were serviced with ice and heat, when necessary, and inspections
made for defects in the equipment. While the terminal delays were
anticipated, the exact time consumed could not be anticipated,
being dependent in each case upon the size of the trains, and the
needs of the shipments for the protective service.
5. Each of the 63 shipments was billed on a Uniform Straight
Bill of Lading contract which constituted the receipt and
contract of carriage. In each contract it was provided and agreed
that the carriers should transport the shipment with "reasonable
dispatch" but not in time for any particular market nor by any
6. At no time did any of the railroads handling the 63
shipments have a through schedule from the eight California
shipping points to Chicago. Instead, each rail carrier had its
own advertised schedule for perishable traffic moving over its
own portion of the through route. The combination of these
individual schedules, when taken together, provided for the
movement of perishable traffic between each of the eight
California shipping points and Chicago by the 7th morning
following receipt of the shipments at the shipping point,
provided said shipments were received by the originating carrier
prior to the closing time for the origin station. At the time the
63 shipments moved, the closing times at the eight California
shipping points ranged from 5:00 P.M. to 11:59 P.M., depending on
the station and its distance from major railroad terminals on the
7. Prior to July 1, 1952, it was customary for plaintiffs to
receive shipments in Chicago from each of the said eight
California shipping points prior to 7:00 A.M. on the 7th morning
following their receipt at the origin station, provided said
shipments were received prior to the closing time for the origin
station. The term "7th morning delivery" refers to delivery in
Chicago from California points according to this custom.
8. Sixty of the 63 shipments in this suit were received by
plaintiffs in accordance with this custom of 7th morning
delivery. The remaining three shipments (Cars WFEX 73995, PFE
75097 and PFE 63058)were received by plaintiffs prior to 7:00
A.M. on the 8th morning following their receipt in California. In
the case of Cars WFEX 73995 and PFE 75097, neither was received
by the originating carrier prior to station closing time. In the
case of Car PFE 63058, plaintiffs suffered no loss between the
7th and 8th morning because there was no decline in the market
between those times, decline in market price being urged by
plaintiffs as the measure of their damages.
9. After July 1, 1952, and during the period when plaintiffs'
63 shipments moved, the custom of 7th morning delivery in Chicago
was sometimes varied by the adoption of faster operating
schedules on a non-official, experimental basis, which were
designed to move perishable traffic from California to Chicago on
a 6th morning basis.
10. These faster schedules took the form of "operating"
schedules and were adopted by the rail carriers on an
experimental basis for a period of one year to test the
feasibility of railroad operations on a 24-hour expedited basis.
During the period of these experimental schedules, the official
advertising of schedules of the rail carriers, producing the 7th
morning delivery time in Chicago were not altered or withdrawn.
Plaintiffs, or their agents, knew of the experimental nature of
the faster schedules, and knew that the terms and conditions of
the Uniform Straight Bill of Lading Contract relating to the
obligation to carry were not changed during this period.
11. Plaintiffs' 63 shipments were carried during the period
from July 1, 1952 and July 1, 1953, or during the time when the
faster schedules were in effect on an experimental basis. Between
July 1, 1952 and July 1, 1953, plaintiffs did receive some
shipments in Chicago from California points prior to
7:00 A.M. on the 6th morning after receipt by the originating
carrier. On an overall basis, particularly before December 31,
1952, the pattern of deliveries on the 6th morning was not
regular or consistent. All but four of plaintiffs' 63 shipments
were carried before December 31, 1952. The term "6th morning
delivery" refers to plaintiffs' experience in receiving shipments
in accordance with the faster experimental schedules.
12. Failure to deliver on the 6th morning sometimes worked to
plaintiffs' advantage where there was an incline in the ...