presumed to have been the value at the place of shipment with the freight added.112 A carrier will not be prejudiced by proof of value at the place where the goods were destroyed, as the goods are presumed to be worth as much or more at the place of destination than at preceding points.113 The value at the point of destination is the market price, and this is found by taking the range of prices. in the entire market and finding the average.114 The average value per box of an entire cargo will be taken where there is no proof as to which of several grades the goods belong to.115 The rules do not allow the injury to the consignee's business by reason of the non-delivery of the goods to be considered.116 Where the goods damaged have no market value, the measure of damages is the cost of reproducing and replacing the articles, if they can be reproduced or replaced, but if they cannot, then the value of the property to the owner, and this is the case where the articles are family portraits.118 The damages may include the usual expenses of ascertaining the amount of injury, but not the auctioneer's charges for selling the damaged goods.1 Freight charges, if not already paid, must be deducted from the value as found under the rule.120. Where the goods are uninjured in quality, but there is a portial loss, the owner cannot abandon the goods and recover their entire value: he can recover only the value of the goods actually lost, to be determined by prices at the point. of destination.121

119

§ 7256. Damages for Delay of Carrier. The measure of damages for delay of carrier in the transportation and delivery of goods is the difference in the value of the goods at the time and place they ought to have been delivered and the time of their actual delivery; 122 and

112 The Arctic Bird, 109 Fed. Rep. 167; A Certain Barge, 109 Fed. Rep. 167.

118 Rome R. Co. v. Sloan, 39 Ga. 636.

114 Smith v. Griffith, 3 Hill (N. Y.) 333. In an action against a common carrier for negligently transporting mulberry trees of the Alpine species, the market value of the trees at the time, however factitious, is the standard of damages: Smith v. Griffith, 3 Hill (N. Y.) 333.

115 The Tangier, 44 Fed. Rep. 692. 116 Baltimore &c. R. Co. v. Pumphrey, 59 Md. 390.

tual value of the portrait to plaintiff, and evidence that he had no other portrait of his father is admissible: Green v. Boston &c. R. Co., 128 Mass. 221; s. c. 35 Am. Rep. 370.

119 Pendall v. Rench, 4 McLean (U. S.) 259.

120 Northern Transportation Co. v. McCalry, 66 Ill. 233; Rice v. Ontario Steamboat Co., 56 Barb. (N. Y.) 384; Galveston &c. R. Co. v. Ball, 80 Tex. 602; s. c. 16 S. W. Rep. 441.

121 Shaw v. South Carolina R. Co., 5 Rich. (S. C.) 462.

122 The Georg Dumois, 88 Fed.

117 Houston &c. R. Co. v. Ney (Tex. Rep. 537; East Tennessee &c. R. Co. Civ. App.), 58 S. W. Rep. 43.

118 Louisville &c. R. Co. v. Stewart, 78 Miss. 600; s. c. 29 South. Rep. 394. The measure of damages is the ac

v. Johnson, 85 Ga. 497; s. c. 11 S. E.
Rep. 809; 8 Rail. & Corp. L. J. 273:
Cutting v. Grand Trunk R. Co., 13
Allen (Mass.) 381; Scott v. Boston

a like rule governs the measure of damages where cattle are the subject of the shipment.123 Notice to a carrier that cattle are being shipped to fill a contract, or of the importance of their reaching their destination by a given time, is essential to render the carrier liable for the difference between the contract price and what they can be sold for, in case of a delay in transportation.124 In the absence of a special agreement by the carrier to deliver goods at any particular time, the law implies an agreement to deliver at a reasonable time.125 Where household goods in use are injured during transportation by the carrier, the measure of damages is the difference in their actual value just prior to and subsequent to the injury, and not the market value of similar goods at the nearest second-hand stores.126 The consignees may, in addition to these damages, recover for other necessary expenses127 incurred by reason of the delay, such as telegrams,128 but not

&c. S. S. Co., 106 Mass. 468; Smith V. New Haven &c. R. Co., 12 Allen (Mass.) 531; D. Klass Commission Co. v. Wabash R. Co., 80 Mo. App. 164; s. c. 2 Mo. App. Repr. 545; New Orleans &c. R. Co. v. Tyson, 46 Miss. 729; East Tennessee &c. R. Co. v. Hale, 85 Tenn. 69; Garlington v. Ft. Worth &c. R. Co., Tex. Civ. App. -; s. c. 78 S. W. Rep. 368; Sherman V. Hudson River R. Co., 64 N. Y. 254; Ward v. New York &c. R. Co., 47 N. Y. 29; Newell v. Smith, 49 Vt. 255. In an action against a carrier for failing to deliver goods within a reasonable time, the plaintiff cannot recover more than the difference between the market value of the goods when they should have been delivered, and their value when they were delivered, by showing a special contract with a third person, of which the carrier knew nothing: Columbus &c. R. Co. v. Flournoy, 75 Ga. 745. In an action against a carrier to recover for damage to grain, resulting from unreasonable delay in its transportation, if the grain was to be delivered under a contract of sale by the shipper, the contract price should be taken as the basis for estimating the damages; otherwise, the market price at the place of delivery, at the time the grain should have reached there, should govern: Illinois &c. R. Co. v. McClellan, 54 Ill. 58.

Missouri &c. R. Co. v. Truskett, 104 Fed. Rep. 728; s. c. 44 C. C. A. 179; Perry v. Chicago &c. R. Co., 89 Mo. App. 49; Sloop v. Wabash R. Co., 93 Mo. App. 605; s. c. 67 S. W.

Rep. 956; Galveston &c. R. Co. v. Botts (Tex. Civ. App.), 70 S. W. Rep. 113; Southern Kansas R. Co. v. Crump (Tex. Civ. App.), 74 S. W. Rep. 335; Texas &c. R. Co. v. Truesdell, 21 Tex. Civ. App. 125; s. c. 51 S. W. Rep. 272; Missouri &c. R. Co. v. Truskett, 186 U. S. 479; s. c. 22 Sup. Ct. Rep. 943; 46 L. ed. 1259; aff'g s. c. 104 Fed. Rep. 728; 44 C. C. A. 179. In an action for damages resulting from delay of a carrier in transporting cattle, an instruction fixing the measure of damages as the difference between the market value of the cattle at an intermediate point where they were sold at the time of sale, and what their market value at the destination would have been, if delivered there without delay, is without prejudice, where it is shown that the place where they were sold was a better market than the place of destination, and that by selling there the damages were diminished: Texas &c. R. Co. v. Scharbauer (Tex. Civ. App.), 52 S. W. Rep. 590.

124 Gulf &c. R. Co. v. Cole (Tex. Civ. App.), 16 S. W. Rep. 176.

125 Sherman v. Hudson River R. Co., 64 N. Y. 254; Ward v. New York &c. R. Co., 47 N. H. 29.

126 Wells &c. Exp. Co. v. Williams (Tex. Civ. App.), 71 S. W. Rep. 314.

127 San Antonio &c. R. Co. v. Josey (Tex. Civ. App.), 71 S. W. Rep. 606.

128 Murrell v. Pacific Exp. Co., 54 Ark. 22; s. c. 14 S. W. Rep. 1098; Swift River Co. v. Fitchburg R. Co., 169 Mass. 326; s. c. 47 N. E. Rep.

for expenses incurred in going to the station prepared to receive the shipment before its arrival, where the carrier used due and reasonable diligence in making the delivery.12

§ 7257. Damages to Third Person by Negligence of Carrier of Goods. A consignee who has advanced money on goods may recover for injuries to such goods the amount of advances made, with interest, to the extent of the value of the goods if delivered in a sound state.180 An insurer is entitled, after he has paid the loss, to recover from the carrier what he has paid the insured, and it is not necessary to show any positive wrongful act by the carrier.131 Where the carrier sold the damaged goods on refusal of the consignee to receive them, it has been held that he was bound by such sale as evidence of their value, and must repay the owner so much of their loss as had not been paid by the insurers.132

§ 7258. Where Property has no General Market Value.-In suitsinvolving property having no general market value, the measure of damages to be recovered is the value as shown by persons whose skill and experience enable them to testify to such values. 133 Where the goods lost or injured by a carrier have no market value at the place of delivery, it is proper to show the amount paid for them in other cities, where it is also shown that the prices paid were those charged by dealers in such goods, and that the goods were reasonably worth the same amount at the place of delivery.134

§ 7259. Duty to Minimize Damages.-The doctrine imposing upon the sufferer from a negligent act the legal duty to exercise reasonable diligence to minimize the resulting injury, and in case of failure in this duty preventing a recovery from the wrong-doer of such damages as the sufferer could have escaped, though most often applied to personal injuries, is not limited to that form of negligence, but includes cases of injuries to property.135 Thus the consignee of a machine must use ordinary care in obtaining another machine where the one shipped is delayed in transportation.136 So, the tenant of premises which the landlord is bound to heat but fails to do so, may

1015; 8 Am. & Eng. R. Cas. (N. S.) 512.

129 Thompson v. Alabama Midland R. Co., 122 Ala. 378; s. c. 24 South. Rep. 931.

v. Pasteur-Chamberland Filter Co., 82 III. App. 94.

134 New York &c. R. Co. v. Weiss (Tex. Civ. App.), 47 S. W. Rep. 674. 135 Louisville &c. R. Co. v. Sullivan

130 Burrett v. Rench, 4 McLean (U. Timber Co., 138 Ala. 369; s. c. 35 S.) 325.

131 Hall v. Railroad Co., 13 Wall.

(U. S.) 367. See post, § 7260.

132 Cassilay v. Young, 4 B. Mon.

(Ky.) 265.

South. Rep. 327 (duty to minimize in case of fire set out by locomotive).

136 Louisville &c. Packet Co. v. Bottorff, Ky.; s. c. 77 S. W.

133 World's Columbian Exposition Rep. 920; 25 Ky. L. Rep. 1324.

cause the heating to be done and recover from his landlord the expenses necessarily incurred by him in so doing, and he cannot refuse to prevent the injury arising from the premises not being heated and then recover from his landlord for such damages.137

7260. Subrogation of Insurer.-An insurer who has paid the loss resulting from a peril insured against may be subrogated to all the claims the insured may have against the person whose negligence caused the injury.138 The Massachusetts statute providing that when a railroad company is held responsible for the destruction of property by fire, it shall be entitled to the benefit of any insurance effected on the property by the owner, less the cost of premium and expenses of recovery, ,139 has been held to apply to a case where the insurance was issued before the statute was enacted.140

$7261. Interest on Damages.-In cases of injuries to real or personal property, interest on the amount of damages is properly allowed from the time of the injury to the date of the assessment of damages. 141 The allowance of interest should be left to the discretion of the jury,142 and this discretion should not be influenced by instructions making the allowance compulsory.143

17 Wayne v. Styles, 94 Ill. App. 615.

Lake Erie &c. R. Co. v. Falk, 62 Ohio St. 297; s. c. 56 N. E. Rep. 1020.

Mass. St. 1895, ch. 293 (Rev. Laws Mass., ch. 111, § 217).

140 Lyons v. Boston &c. R. Co., 181 Mass. 551; s. c. 64 N. E. Rep. 404.

The John H. Starin, 116 Fed. Rep. 433 (money expended for wrecking services and repairs); Harrison v. Hughes, 119 Fed. Rep. 997 (detention of vessel pending repairs); Black v. Minneapolis &c. R. Co., 122 Iowa 32; s. c. 96 N. W. Rep. 984 (destruction of meadow by fire set out by locomotive); Robinson v. Merchants &c. Trans. Co., 45 Iowa 470 (interest allowed for delay of carrier from time goods should have been delivered); Murrell v. Dixey, 14 La. An. 298 (delay of carrier); Coan v. Brownstown Tp., 126 Mich. 626; s. c. 86 N. W. Rep. 130; 8 Det. Leg. N. 160; Smith v. Whitman, 13 Mo. 352 (delay of carrier); Hinds V. Barton, 25 N. Y. 544; Gulf &c. R. Co. v. Sheperd, Tex. Civ. App. —; S. c. 76 S. W. Rep. 800; Southern Pac. Co. v. Anderson, 26 Tex. Civ. App. 518; s. c. 63 S. W. Rep. 1023 (delay of carrier); Texas &c. R. Co.

v. Murtishaw, Tex. Civ. App. —; s. c. 78 S. W. Rep. 953; Texas &c. R. Co. v. Scrivener (Tex. Civ. App.), 49 S. W. Rep. 649 (animals killed by negligence at railroad crossing); Chapman v. Chicago &c. R. Co., 26 Wis. 295. Contra, Atkinson v. Atlantic &c. R. Co., 63 Mo. 367. Where intervening petitions claiming damages growing out of a collision were filed after the vessel had been discharged on stipulation, but were subsequently treated as original libels, and process ordered issued thereon, the date of such order will be considered the time of commencement of the suit, for the purpose of computing interest on damages recovered: The Oregon, 89 Fed. Rep. 520.

142 Southern Pac. Co. v. Arnett, 126 Fed. Rep. 75; District of Columbia v. Robinson, 180 U. S. 92; s. c. 21 Sup. Ct. Rep. 283; 45 L. ed. 440; aff'g s. c. 14 App. Cas. (D. C.) 512.

143 Brent v. Thornton, 106 Fed. Rep. 35; s. c. 45 C. C. A. 214; Western &c. R. Co. v. Calhoun, 104 Ga. 384; s. c. 30 S. E. Rep. 868; Johnson v. Northern Pac. R. Co., 1 N. D. 354; s. c. 48 N. W. Rep. 227; 45 Am. & Eng. R. Cas, 554.

Physical Pain and Mental Anguish, §§ 7315-7323.
Cost of Cure, §§ 7327-7337.

Recovery by Third Person, §§ 7341-7345.

ARTICLE I. GENERAL PRINCIPLES.

7270. Permanent injuries-Life- 7276. Physical examination of plain

§ 7270. Permanent Injuries-Life-Tables.-The plaintiff may show that the injuries complained of are permanent in their nature,— that he will probably not recover from their effects; and when there