Abrams v. Milwaukee, L. S. & W. Ry. Co.

• Decision Date: 10 April 1894
• Citation: 87 Wis. 485,58 N.W. 780
• Parties: ABRAMS v. MILWAUKEE, L. S. & W. RY. CO.
• Court: Wisconsin Supreme Court

87 Wis. 485

58 N.W. 780

ABRAMS

v.MILWAUKEE, L. S. & W. RY. CO.

Supreme Court of Wisconsin.

April 10, 1894.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Robert E. Abrams against the Milwaukee, Lake Shore & Western Railway Company for damages resulting from its negligence in the shipment of horses. Plaintiff had a verdict for $650 for the loss of three horses, upon which the court refused to enter judgment, holding that the clause in the shipping contract providing that the company should not be liable for more than $100 per head was valid, and ordered judgment for $300 in favor of plaintiff. From this judgment both parties appeal. Judgment as to plaintiff reversed, and remanded with instructions to enter judgment for the full amount, and affirmed as to defendant.

It appears from the record that March 31, 1890, the plaintiff and one Richard Abrams were each the owners of four several horses at Harrison, Lincoln county, Wis., and shipped the same upon the cars of the defendant from that station to Oshkosh. That at the time of said shipment the agent of the plaintiff and said Richard Abrams entered into a written agreement respecting said shipment, of which the following is a copy, to wit: “Harrison Station, March 31, 1890. Received from Joe Phelan, consigned to G. W. Pratt, Oshkosh, live stock described as follows, viz.: Horses in M., L. S. & W. car number 3,204, to be delivered at Oshkosh at the following rates, viz. tariff. In consideration of which, and of other valuable considerations, it is hereby mutually agreed between the Milwaukee, Lake Shore & Western Railway Company and the shipper of said live stock that the said company shall not be liable for any loss or damage or injury to said live stock from any cause whatever, whether by negligence of its agents or employes or otherwise, except such as may result from a collision of the train, or from cars being thrown from the track in course of transportation; and it is further agreed that the owner shall load, unload, feed, water, and take care of said stock at his own expense and risk, and that he assumes all risk of injury or damage that the animals may in any way or manner or from any cause sustain, except as above provided. It is further agreed that the liability of the company shall not, in any event, exceed one hundred dollars per head; and that all persons passed free, to accompany and care for the stock, will assume all risk of personal injury from any cause whatever, whether by negligence of the agents or employes or otherwise. Milwaukee, Lake Shore and Western Ry. Co., by F. J. Gruber, Agent. Jos. Phelan, Shipper. Agents will note instructions on back hereof.” Indorsement on back: “M., L. S. & W. Ry. Co. Live Stock Contract. From Harrison to Oshkosh. Nos. of cars, M., L. S. & W. 3,204. I hereby certify that I am actually in charge of the live stock described within, and, in consideration that the M., L. S. & W. Ry. Co. transports me free on the same train with the stock, I hereby assume all risk of personal injury from any cause whatever. Rob't. Lyness.”“I hereby certify that the above named are actually in charge of the live stock described within, and are entitled to pass on same train with it, under conditions named. F. J. Gruber, Agent, Harrison Station.” That, November 24, 1891, the plaintiff commenced this action, alleging, in effect, the incorporation and organization of the defendant, the making of such contract of shipment, and the payment of $15 in consideration thereof; that the defendant delayed the transportation of said horses for a period of five hours or more after arriving at Antigo, and that the defendant so negligently and carelessly conducted and mismanaged in respect to the carrying of said horses and its duty and calling as a common carrier that it neglected and failed to give the plaintiff's servant in charge of said horses an opportunity to unload and feed the same, though requested so to do by said servant, and by reason thereof the said horses suffered for want of care and food, and became weak and faint; that said eight horses were transported in the same car with eight other horses; that by reason of their faintness and weakness, so caused, they were unable to retain their standing or proper posture in said car, and were forced into cramped positions and attitudes, and thrown down, so as to necessitate their being twice unloaded during the transportation,--once at Elmhurst, and once at Eland Junction, on the line of the defendant's road; that when so unloaded the defendant refused, failed, and neglected to give said servant in charge an opportunity to feed and properly care for said horses while they were so unloaded, but immediately caused the same to be reloaded; that, in consequence of the defendant's careless and negligent conduct, three of said horses became sick and diseased, and died of the effects of said exposure and said want of care and protection; that two of them were the property of the said Richard Abrams, and the other the property of this plaintiff; that the loss of said horses was to the damage of the plaintiff and the said Richard Abrams in the sum of $650; that afterwards, and before the commencement of this action, the said Richard Abrams, for a valuable consideration, duly sold and assigned to the plaintiff all his interest, claim, and demand against the defendant on account of the loss and death of said horses as aforesaid, and that the plaintiff is now the sole owner thereof; and demanded judgment in the sum of $700, with costs and disbursements. The defendant answered by way of denials and admissions, and justified under said written contract. At the close of the trial the jury returned a special verdict to the effect (1) that the loss or death of the plaintiff's said horses was caused by the negligence of the defendant or its employes; (2) that the value of each of two of said horses was $200 each, and the other was $250. That the court thereupon denied the motion of the defendant to set aside the verdict and grant a new trial; that the court thereupon denied the motion of the plaintiff for judgment upon and in accordance with the special verdict for the whole amount thereof, with costs, but ordered judgment upon the special verdict to be entered in favor of the plaintiff and against the defendant in the sum of $300 and costs and interest from the commencement of this suit; that judgment was thereupon duly entered accordingly,--from which both parties appeal.Felker, Stewart & Felker, for plaintiff.

A. L. Cary and B. G. Schley, for defendant.

CASSODAY, J. (after stating the facts).

The jury found as a matter of fact, in effect, that the horses came to their death by reason of the negligence of the defendant. The horses were transported on the defendant's car for a distance of about 140 miles, and the time occupied by such transportation was about 34 hours. During that time the horses had no food nor drink. According to the testimony of those in charge of the horses, the defendant refused to give them any opportunity to take the horses from the car, and give them food and drink, though repeatedly requested so to do; that this was particularly so at Antigo, where the car remained about eight hours; that it was also true at other places; and that there were eight other horses in the same car, and it was impracticable to give them food and water without removing them from the car. It appears that the train reached Oshkosh about six hours behind schedule time. There is expert testimony to the effect that such exposure of the horses without food or drink probably induced the disease which caused their death. We must assume, therefore, that the evidence supports the verdict to the effect that the horses came to their death by reason of the negligence of the defendant. The defense relied upon is that, by the written contract of shipment contained in the foregoing statement, the defendant was expressly exempted from all liability by reason of such negligence, and that the plaintiff thereby assumed all risk of such injury or damage. Such is, indeed, the contract, if we are to give literal effect to its language. In Betts v. Trust Co., 21 Wis. 80, it was said by Dixon, C. J., in speaking of the transportation of live stock, that, “as to this species of property, we think it competent for the carrier to contract that the owner shall assume all risk of damage or injury from whatever cause happening in the course of transportation.” This proposition covers more ground than the point actually decided in that case, but seems to be sustained by the earlier English cases, while the later English cases seem to hold a contrary doctrine. See Richardson v. Railway Co., 61 Wis. 598, 599, 21 N. W. 49, and cases there cited. In Morrison v. Construction Co., 44 Wis. 410, the only question involved, as stated by the present chief justice, was whether the company “was guilty of any negligence, carelessness, or fault which caused or produced the injury to the property of the plaintiff,” and he concluded by saying, “From all that appears in the evidence, it was a mere accident, and unaccountable.”...