McFadden v. Missouri Pac. Ry. Co.

• Citation: 4 S.W. 689,92 Mo. 343
• Parties: McFadden v. The Missouri Pacific Railway Company, Appellant
• Decision Date: 06 June 1887
• Court: United States State Supreme Court of Missouri

4 S.W. 689

92 Mo. 343

McFadden v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from Cooper Circuit Court. -- Hon. E. L. Edwards, Judge.

Affirmed.

T. J Portis T. G. Portis and W. S. Shirk for appellant.

(1) Plaintiff's agent, Frost, accepted the bill of lading without any fraud or imposition being practiced upon him, and without making any objections to its terms. It was therefore, the sole agreement under which the stock was shipped, and plaintiff is bound by its terms. Hutchinson on Carriers, sec. 265; Lawson on Cont. of Carriers, sec. 102, and authorities cited; Snider v. Adams Ex. Co., 63 Mo. 376; O'Bryan v. Kinney, 74 Mo. 125; Railroad v. Cleary, 77 Mo. 634; Brown v. Railroad, 18 Mo.App. 568. It follows that the court erred in refusing to give defendant's second instruction. (2) Plaintiff's own evidence, which was not contradicted or varied by any evidence offered by the defendant, conclusively shows that the mules were destroyed by the straw and hay, used in the car for bedding, taking fire. The contract read in evidence specially exempted defendant from liability on account of loss thus occasioned. Such a stipulation is a reasonable one, and binding on the plaintiff. Lawson on Cont. of Carriers, sec. 122; Squire v. Railroad, 98 Mass. 239. The evidence shows also that the loss occurred solely from the straw in the car taking fire, and it devolved upon the plaintiff to show that the car being placed next to the engine was negligence on the part of the company, and caused the fire. This he did not do. Read v. Railroad, 60 Mo. 199, on p. 206, and authorities cited; Railroad v. Corcoran, 40 Ark. 375; S. C., 18 Am. and Eng. R. R. Cases, and authorities cited in note. Defendant's first instruction should, therefore, have been given. (3) At most, defendant was not liable for more than one hundred dollars per head for the mules. The stipulation to that effect in the contract of shipment is valid, and binding on the plaintiff. Lawson on Cont. of Car., sec. 122; Hutchinson on Car., sec. 249, and authorities cited; Rice v. Railroad, 63 Mo. 314; Harvey v. Railroad, 74 Mo. 538, and authorities cited; Hart v. Railroad, 112 U.S. 331; Brown v. Railroad, 18 Mo.App. 568. And such stipulations of exemption do not contravene the rule that a carrier cannot stipulate for exemption against his own negligence. Rice v. Railroad, 63 Mo. 314, on 318 and 319, citing, Express Co. v. Caldwell, 21 Wall. 264; Harvey v. Railroad, 74 Mo. 538, on 545-6; Hart v. Railroad, 112 U.S. 331. Where the law is thus plainly settled by the adjudications of our own Supreme Court we deem it useless to cite other authorities. It follows that the court committed error in giving the plaintiff's instructions, and in refusing to give the fourth and fifth instructions prayed by the defendant. (4) The court, by giving the sixth instruction asked by defendant, told the jury that the mere fact that the car containing the mules was placed next to the engine did not of itself constitute negligence on the part of the defendant. This was the only act, which it was attempted to prove, constituting negligence. The verdict was, therefore, unsupported by any sufficient evidence under this instruction, and the motion for a new trial on this ground should have been sustained.

Cosgrove & Johnston for respondent.

(1) A common carrier cannot, by contract, change his liability to that of a mere forwarder, nor absolve himself from liability for his own negligence. Galt v. Adams Express Co., 48 Am. Rep. 742; Lupe v. Railroad, 3 Mo.App. 77; Harvey v. Railroad, 74 Mo. 538; Dawson v. Railroad, 79 Mo. 296. (2) The defendant's negligence in this case was such as it could not stipulate against. Powell v. Railroad, 32 Pa. St. 414; Holsapple v. Railroad, 86 N.Y. 275. (3) The evidence shows the freight rates charged plaintiff were the usual ones, and hence the stipulation fixing the valuation of one hundred dollars each on the mules was without consideration, and not binding on plaintiff. That a railroad or other common carrier cannot thus limit its liability, or arbitrarily fix a value upon property lost or injured by its negligence, is well settled by nearly all the courts of last resort of this country, though, as expressed by a learned judge, "we are aware that in some of the states, notably in some which possess, or, perhaps, are possessed by vast railroad corporations, the doctrine of exemption by special contracts has been carried to extremes." Galt v. Adams Express Co., 48 Am. Rep. 742; Moulton v. Railroad, 31 Minn. 85; Railroad v. Simpson, 17 Cent. Law Jour. 474; Scruggs v. Railroad, 18 F. 318; Black v. Goodrich Trans. Co., 55 Wis. 319; Kirby v. Adams Express Co., 2 Mo.App. 369; 2 Rorer on Railroads, p. 1248, et seq.; U. S. Express Co. v. Bockman, 28 Ohio St. 144. (4) The instructions fairly submitted the issues to the jury, and correctly declared the law.

OPINION

Ray, J.

Plaintiff brought this action in the circuit court of Cooper county, against the defendant, as a common carrier, to recover the value of a car load of mules, delivered to defendant at Boonville, to be transported over its railroad to the state line, at Kansas City. Whilst in transit, the car containing the mules caught on fire, and thirteen head were burned to death, and the other three so injured as to be a total loss to the plaintiff.

An objection was made to the introduction of any evidence, upon the ground that the petition did not state facts sufficient to constitute a cause of action, which said objection was properly overruled. The petition not only alleged the delivery and loss of the mules, whilst in defendant's possession, as a common carrier, which was sufficient, but charged negligence in managing and operating the train, whereby the car was set on fire and the mules burned, injured, and destroyed. No other point was made, in respect to the pleadings, and we need not set them out.

The evidence of plaintiff shows the delivery of the mules by plaintiff to defendant; that the car, in which they were transported, was bedded with straw, and placed next to the engine; that this was not customary, but unusual and dangerous, and prudence required that such cars should be placed at a greater distance in the train from the engine; that the rear of the train was the safest place, whilst next to the engine was, for such cars, the most dangerous, on account of the liability of the straw bedding to take fire from the sparks of the engine. It should be, also, stated, that the train in question consisted of fifteen or twenty cars, but two of which, beside the one in question, were loaded with stock, and of these, one was placed next to the car containing the mules injured by the fire, or second from the engine, whilst the other was put near the rear end of the train, and next to the caboose. This was the substance of the evidence in chief, in behalf of plaintiff.

Defendant offered no oral testimony in the cause, but relied upon the bill of lading, or contract of shipment, which it set up in the answer and read in evidence at the trial. The evidence in rebuttal will be considered later, in the course of this opinion.

It has been held in this, and most of the states, that, by special or express contract, or special acceptance, fairly and understandingly made, the carrier may limit his common-law liability. The shipper may, lawfully, if he sees fit, surrender the obligation of the carrier, as an insurer of his property, but the law is firmly settled, in this state, that the common carrier cannot, by any sort of stipulation, exempt himself from the consequences of his own negligence. We need not, again, discuss that question.

If placing the car bedded with straw, containing the mules, next to the engine, was unusual, negligent, and dangerous, and the car was set on fire by sparks from the engine, and the mules thereby destroyed, all of which the evidence for plaintiff shows, without any attempt at contradiction from defendant, then, under numerous rulings of this court, the provision in the contract, whereby the plaintiff assumed "the risk of loss or injury to the mules, by fire, or any account, whatever," would be, so far, invalid, and no protection to the defendant.

In an analogous case, the Supreme Court of Pennsylvania, in considering the liability of common carriers, say: "A defective wheel, or axle, or frame work, would confessedly render them liable, even as against the release. The carrying of a combustible article, so near the engine as to be exposed to sparks, was even more inexcusable; for this could not escape observation, as defects in the vehicle might." Powell v. Railroad, 32 Pa. 414. See, also, Holsapple v. Railroad, 86 N.Y. 275. At all events, in the absence of all opposing evidence on the part of defendant in that behalf, this court must, after verdict, assume the negligence of defendant, and dispose of the case under that view.

But the stipulation in the contract of shipment, most relied on for a reversal of the judgment, is the one declaring the company should not be liable for more than one hundred dollars per head for the mules. Such a stipulation, it is claimed, is valid and binding, and does not contravene the rule which forbids the carrier to stipulate against his own negligence. Numerous decisions sustain such stipulations, when fairly made, and where the parties agree on a fixed valuation of the property, and a special and reduced rate of freight is given and received, based upon the condition that the carrier assumes liability, only to the extent of the agreed value of the property. Hart v. Railroad, 112 U.S. 331, and cases cited.

Other decisions deny the validity of such provisions, and hold them void, as releasing the carrier...