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This section contains the nature of the case and procedural background.

Martinez (P) had his agent deliver a dragline (strip mining machinery) to Penn Central Railroad on February 11, 1974, for shipment from Ohio to Texas. The unit was loaded onto five separate cars, and the last of the cars arrived on April 2, 1974. The unit was damaged in transit and P had to make repairs totaling $14,467.00. Those repairs were not completed until June 20, 1974. P sued D for the cost of the repairs and the rentals lost from the fact that the unit should have arrived on March 1. Southern Pacific (D) as delivering carrier was liable for all of P's claims on the shipment. P and D settled claims for the damages incurred and the cost of demurrage charges. D filed a 12(b)(6) motion, and it was granted for the remaining claim on loss of use. The trial court held that such damages are special and P failed to allege that D had any notice of the possibility that such damages would accrue upon a breach of the contract between the parties. P appealed.

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