the Michigan Southern &Amp; Northern Indiana Railroad Co. v. John Mcdonough And Chauncey Andrews

• Citation: 21 Mich. 165
• Court: Supreme Court of Michigan
• Decision Date: 12 July 1870
• Parties: The Michigan Southern & Northern Indiana Railroad Co. v. John McDonough and Chauncey Andrews

21 Mich. 165

The Michigan Southern & Northern Indiana Railroad Co. v. John McDonough and Chauncey Andrews

Supreme Court of Michigan

July 12, 1870

Heard April 9, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Hillsdale circuit.

This was an action of assumpsit, brought by John McDonough and Chauncey Andrews, in the circuit court for the county of Hillsdale, against the Michigan Southern & Northern Indiana railroad company, for damages sustained by the plaintiffs for the non-performance of a contract to carry live stock from Hillsdale, Osseo, and Coldwater, to Detroit.

The plaintiffs declared specially upon the liability of the defendants as common carriers, and their legal obligation, as such, to carry safely one hundred head of cattle, and one hundred head of hogs, delivered to them for that purpose, alleging unnecessary and unreasonable delay in the transportation of the property, by reason of which delay the cattle and hogs were greatly depreciated in value, etc.

The defendants pleaded the general issue. On the trial, exceptions were taken by the counsel for the defendants to the rulings of the circuit judge, upon the following question, propounded by the counsel for defendant to a witness called by the plaintiffs: Was it usual for shippers of cattle, and was it the custom for them, to go with the cattle on the train and care for them, under such a pass? To which question the counsel for plaintiffs objected. The court thereupon ruled that the question might be put and answered, to which ruling the counsel for plaintiffs excepted. The witness answered and said: It was customary for some one to go with the cattle; we either went or spoke to some one to do it for us; I speak of cattle--it was not customary to do so with hogs.

Question by plaintiffs' Did you ever have any notice, from any agent of defendant's company, that they gave you a pass in consideration of your relieving the company from any liability in carrying stock? To which question the defendant's counsel objected, as being irrelevant. The court ruled that the question was not objectionable for irrelevancy, and might be put, to which ruling the counsel for defendant excepted. In reply to this question, witness answered, No.

Question by plaintiffs' Were you ever aware, previous to shipping this stock, of any custom of defendant's company that required the shipper to go along and care for the stock, in consideration of the pass? To which question defendant's counsel objected as irrelevant. The court ruled that the question might be put, to which ruling the counsel for defendant excepted; and in reply to the question the witness said: I never knew of any such custom; the custom is that drovers are with their stock, and they sell when a market suits them; sometimes they are sold after loaded, to be delivered at destination.

The counsel for the plaintiffs asked the following question: What, in your opinion, was the extra shrinkage in consequence of the delay at Osseo, Hillsdale and Coldwater, and at Detroit, above what it would have been if they had gone on the regular train and had been unloaded on arrival? To which question the defendant's counsel objected, for incompetency and irrelevancy. The court overruled the objection and permitted the question to be asked, and the counsel for the defendant excepted.

The witness is asked the same question as to the loss by shrinkage in hogs that was put in reference to the shrinkage of cattle. The defendant's counsel objects, for the same reason given in reference to the first question as to cattle. The court overrules the objection, and directs that the evidence may be received. To which the counsel for the defendant excepts.

Plaintiffs' counsel propounded the following question: If they had gone forward on the regular train on the 13th, at what time would they have arrived at Suspension Bridge? To which defendant's counsel objects, as irrelevant, as beyond our territory. The court overruled the objection, and the counsel for defendant excepted.

The counsel for the plaintiffs asked of several witnesses the same questions as to extra shrinkage on cattle, and varying it and making it applicable to hogs. To all which questions the counsel for defendant objected, and for the same reasons stated in the objection to the former question. The court overruled the objection and permitted the questions to be put, and defendant excepted.

The defendant's counsel put the following question, viz.: Are you acquainted with the usages of other roads with which our road connects in Illinois, Indiana, Ohio and Michigan? Plaintiffs' counsel objects. The court overruled the question and excluded it. The defendant's counsel excepted.

Defendant's counsel asked the following question: From your knowledge of railways and length of time you have been connected with them, have you a knowledge of the general usages of the roads and connections with them east and west, and also of the Michigan Central railroad, in reference to carrying cattle? Plaintiffs' counsel objected and the court sustained the objection, requiring defendants to confine their inquiries exclusively to usage on their own road, and defendant's counsel excepted.

The evidence having been concluded, the counsel for defendant insisted, on behalf of said defendant, that the said several matters so produced and given in evidence, on the part of the defendant, were sufficient to entitle the defendant to a verdict, and to be conclusive evidence in favor of the defendant to entitle it to a verdict in this case, and to bar the said plaintiffs of their action aforesaid. But to the claim of defendant's counsel in respect to their proof being sufficient to bar said plaintiffs of their action, plaintiffs' counsel objected, and insisted that the same were not sufficient to entitle the defendant to a verdict or to bar the plaintiffs of their action; and the counsel for the defendant further requested the circuit judge to charge the jury as follows:

I. The evidence is not admissible under the declaration, and there can be no verdict for the plaintiffs. Which charge the court refused to give, and the defendant excepted to such refusal.

II. The usage, if proved, shows that defendant is not a common carrier of animals, and the evidence is not admissible under the declaration. Which charge the court refused to give, but charged in lieu thereof that the defendant was a common carrier, but only according to the usage proved.

XII. That a well established, long continued usage and course of business, with which the plaintiffs have complied for years, is obligatory upon them and constitutes the rule of action between the parties, notwithstanding the plaintiffs were ignorant of the legal consequences of such usage. The court so charged.

XIII. That the law of 1867, Session Laws of Michigan, page 165, is not applicable to defendant, because it would violate article one, section ten, of the constitution of the United States, by impairing the obligation of the contract contained in the charter of the defendant and the amendments thereto. The court refused so to charge, and the defendant excepted to such refusal.

XIV. That if the stock which was changed at Elkhart was, in due course of business, ready for transportation at Chicago before plaintiffs' stock was ready at Coldwater, Hillsdale and Osseo, it was not a violation of defendant's charter in reference to through and way freight to continue its transportation, although such act prevented the taking on of plaintiffs' stock on the night of the 12th of December. The court gave this charge, with this addition, viz.: Unless the consequence was contemplated or reasonably expected by the company. The defendant excepted to this addition.

XIX. That it is not the duty of the defendants to send on the same engine from Elkhart which came from Chicago, or to send an extra engine at night to haul the plaintiffs' stock, but might lawfully await the arrival of the succeeding train, by which it was taken, giving the plaintiff opportunity to unload their stock, feed and rest it, if they elected. The court refused so to charge, but charged generally the defendants were not obliged to take extraordinary pains, to which refusal and charge the defendant excepted.

XX. That all who deal with a common carrier are bound to take notice of its well established usages and course of business, and their ignorance of such usages will not prevent their application to the business transacted under it by the carrier. The court so charged.

XXI. That if the plaintiffs have acted under the usage for years, have received passes for themselves and their servants, and under such passes have, in fact, always cared for their stock, and fed it at all yards on defendant's line, and accompanied it upon the cars, in all cases caring for it there, wholly without any interference on the part of defendant's servants there, they are bound by such course of business, and the defendant is not in such case a carrier under the common law liabilities. The court so charged.

Under the charge of the court, the jury found a verdict for the plaintiffs, and the judgment entered thereon comes into this court by writ of error.

Judgment reversed, with costs, and a new trial awarded.

Warner Wing, for plaintiff in error:

I. The court should have charged that there was a variance between the proof and declaration, and...