January 2, 1963
ARMOUR RESEARCH FOUNDATION OF ILLINOIS INSTITUTE OF TECHNOLOGY, PLAINTIFF-APPELLANT,
CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, DEFENDANT-APPELLEE
Before DUFFY, KNOCH and SWYGERT, Circuit Judges.
SWYGERT, Circuit Judge.
In our decision, 297 F.2d 176 (7th Cir. 1961), we remanded the case to the District Court to "make necessary findings vital to a decision of the cause." The trial judge, in conformity with our mandate, set aside the original judgment; made additional findings of fact*fn1 and conclusions of law; and entered a new judgment for defendant. From this latter judgment plaintiff now appeals.
We believe the evidence and the reasonable inferences to be drawn therefrom warranted the trial judge in finding that plaintiff had failed to prove that the contents of the motor truck were in good condition when initially delivered to the Southern Pacific. A finding that the goods were undamaged when delivered to the Southern Pacific would have been predicated on mere speculation and conjecture.*fn2
Possible defects resulting from the original loading were obviously not discoverable by ordinary observation. The truck was padlocked so that it could not be entered. The bill of lading said nothing about the contents of the truck. These circumstances, we believed, relieved the carrier of any obligation to ascertain the contents of the truck or to discover whether these contents were properly packaged for rail shipment. They further placed upon plaintiff the burden of proving that the packaged contents were properly loaded and secured within the truck for rail shipment. We think the trial judge's finding that plaintiff did not meet that burden is supported by evidence in the record and hence is not clearly erroneous.
Plaintiff in this appeal also contends that the denial of defendant's motion for a finding at the close of plaintiff's case under Rule 41(b), F.R.Civ.P., constituted a finding in its favor which was conclusive and could not thereafter be disturbed by the trial judge. As we view it, a denial of defendant's motion amounts to nothing more than a refusal to enter judgment at that time. At most it constituted a tentative and inconclusive ruling on the quantum of plaintiff's proof. Certainly it did not preclude the trial judge from later making considered findings and determinations not altogether consistent with his prior tentative ruling.
The judgment of the District Court is Affirmed.