Ashton v. Chi. & N. W. Ry. Co.

• Decision Date: 30 April 1929
• Citation: 198 Wis. 618,225 N.W. 328
• Parties: ASHTON ET AL. v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

198 Wis. 618

225 N.W. 328

ASHTON ET AL.

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

April 30, 1929.

Appeal from a judgment of the Circuit Court for Vilas County; A. H. Reid, Circuit Judge. Reversed.

Action by W. R. Ashton and W. H. Ashton against the Chicago & Northwestern Railway Company, begun March 6, 1928, to recover for the loss of a carload of lumber which was destroyed by fire while on its side track. From a judgment in favor of the plaintiffs entered June 18, 1928, the defendant railway company appealed.

The car of lumber which was burned was standing upon a side track in Northern Wisconsin, known as the Parrish siding, which was adjacent to a main line of the defendant company. The company maintained no agent at this siding. For four years previous to the time in question the plaintiffs had shipped from 40 to 50 cars of lumber from this siding each year. It was the custom of the plaintiffs to make out duplicate bills of lading for each car shipped. These bills of lading were either mailed to the agent at the nearest station, or carried to that station by the conductor of the freight train that picked up the car. When received the bills of lading were signed by the agent on behalf of the company. The bill of lading for the car in question was mailed to this agent, but did not reach him until after the car was burned.

Shortly before the plaintiffs finished loading this car of lumber, the defendant company set out on this siding a refrigerator car which was coupled to the car containing the lumber. This car contained two charcoal heaters of the standard type used for such purpose which were securely fastened in the car, in each of which a charcoal fire was burning. The shipper who ordered the car inspected it after the car was set out upon the siding during the afternoon prior to the fire. He testified that the heaters were left closed air tight; that they were in sound condition in every way; that there was no defect in the heaters that he could discover; that there was no chance for a fire to get out of the heaters; and that the heaters were in such condition that one could bear his hand on them.

Early the following morning both cars were discovered to be on fire. At that time the refrigerator car and the end of the lumber car next to it were practically consumed. The fire was then eating its way toward the other end of the lumber car, indicating that the fire originated in the refrigerator car.

The jury found that the defendant company was negligent in placing the refrigerator car on the siding without providing for its being locked or otherwise cared for, and that such negligence was the proximate cause of the fire which destroyed plaintiffs' lumber.J. F. Baker and Llewellyn Cole, both of Milwaukee, for appellant.

Jonas Radcliffe, of Eagle River (Luchsinger & Riley, of Oshkosh, of counsel), for respondents.

STEVENS, J.

[1][2][3] The defendant company is not liable for the loss of plaintiffs' lumber, unless it was guilty of negligence, regardless of the question of whether the relationship of shipper and carrier was created before the fire occurred. If the course of business pursued by these parties for four years prior to the fire was such as to create the relationship of shipper and carrier without the agent signing the bill of lading, the rights and liabilities of these parties must be determined under the terms of the standard bill of lading which was made out for the car in question by the plaintiffs and mailed to defendant's agent. This bill of lading provided that “property * * * taken from a station * * * at which there is no regularly appointed freight agent shall be entirely at risk of owner, * * * except in case of carrier's negligence, * * * until the care are attached to * * * locomotive or train.” This provision is valid, as it does not attempt to exempt the railway company from the consequences of its own negligence. Schaller v. Chicago & N. W. Ry. Co., 97 Wis. 31, 36, 71 N. W. 1042. This is not an unreasonable provision, as the shipper is usually better able to protect his property at such a siding than is the agent of the company located at a station some miles away.

Under this form of contract it is immaterial, under the facts of this case, whether the liability of the defendant be that of a carrier or a warehouseman. In either case there must be proof of negligence. So that the liability...