Atchison, Topeka & Santa Fe Railroad Company v. Lawler

• Decision Date: 02 May 1894
• Docket Number: 5470
• Citation: Atchison, Topeka & Santa Fe Railroad Company v. Lawler, 58 N.W. 968, 40 Neb. 356 (Neb. 1894)
• Parties: ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. WILLIAM E. LAWLER
• Court: Nebraska Supreme Court

58 N.W. 968

40 Neb. 356

ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. WILLIAM E. LAWLER

No 5470

Supreme Court of Nebraska

May 2, 1894

ERROR from the district court of Nuckolls county. Tried below before HASTINGS, J.

AFFIRMED.

George R. Peck, F. A. Brogan, A. A. Hurd, and G. W. Hurd, for plaintiff in error:

It was an abuse of discretion for the court to refuse to submit questions for special findings. (Floaten v. Ferrell, 24 Neb. 352; Nebraska & Iowa Ins. Co. v Christiensen, 29 Neb. 581; Doom v. Walker, 15 Neb. 347.)

The court erred in refusing to admit in evidence the contract releasing the company from liability for damage arising from fire. Congress has the exclusive right to regulate commerce between the states, and the states are powerless so to do. (State v. Pratt, 59 Vt. 590; People v. Brooks, 4 Den. [N. Y.], 469; Sweatt v. Boston, H. & E. R. Co 3 Clif. [U. S. C. C.], 348; Norfolk & W. R. Co. v Commonwealth, 3 S.E. [Va.], 340; 2 Story, Const. [3d ed.], p. 4; State v. Delaware, L. & W. R. Co., 30 N.J.L. 473; Lafarier v. Grand Trunk R. Co., 24 A. [Me.], 848; Moor v. Veazie, 31 Me. 360; State Tonnage Tax Cases, 12 Wall. [U.S.], 214; Hall v. De Cuir, 95 U.S. 491; Pomeroy, Const. Law, sec. 378; Wabash, St. L. & P. R. Co. v. Illinois, 118 U.S. 558; State Freight Tax, 82 U.S. 232; Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465; Western Union Telegraph Co. v. Texas, 105 U.S. 460; Louisville & N. R. Co. v. Railroad Commission of Tennessee, 16 Am. & Eng. R. Cases [Tenn.], 3.)

John M. Ragan, contra, cited,

On the question of the power of the carrier to limit its liability: Constitution, sec. 4, art. 11; Atchison & N. R. Co. v. Washburn, 5 Neb. 117; Missouri P. R. Co. v. Vandeventer, 26 Neb. 222; Union P. R. Co. v. Marston, 30 Neb. 241; Baltimore & O. R. Co. v. Campbell, 36 Ohio St. 647; Adams Express Co. v. Stettaners, 61 Ill. 184; Chicago, R. I. & P. R. Co. v. Conklin, 32 Kan. 55; Hannibal & St. J. R. Co. v. Swift, 12 Wall. [U.S.], 262; Hale v. New Jersey Steam Navigation Co., 15 Conn. 539; Chicago, R. I. & P. R. Co. v. Witty, 32 Neb. 279, and cases.

On refusal of court to submit questions for special findings: Floaten v. Ferrell, 24 Neb. 347; Adams Express Co. v. Pollock, 12 Ohio St. 618; Ward v. Busack, 46 Wis. 407.

On measure of damages: Ward v. New York C. R. Co., 47 N.Y. 29; 5 Lawson, Remedial Rights & Privileges, sec. 2634, and cases; Hutchinson, Carriers, sec. 186.

On the constitutional provision forbidding common carriers from limiting their liabilities by contract: Hart v. Chicago & N. W. R. Co., 69 Iowa 485; Sherlock v. Alling, 93 U.S. 99; Johnson v. Chicago & P. Elevator Co., 119 U.S. 388; Smith v. Alabama, 124 U.S. 465; State of Iowa v. Chicago, M. & St. P. R. Co., 33 F. 391; Kimmish v. Ball, 129 U.S. 217.

J. B. Cessna, also for defendant in error.

OPINION

The opinion contains a statement of the case.

HARRISON, J.

W. E Lawler, the plaintiff in the court below, commenced an action in the district court of Nuckolls county, Nebraska, to recover from the defendant railroad company the value of certain property shipped by him over the defendant's line of road from Superior, in this state, to Trinidad, Colorado. The petition pleaded the corporate character of the defendant, that it was a common carrier for hire, and owned and operated a line of railroad extending from the city of Superior, Nebraska, to Trinidad, Colorado, and had an office in Superior for the transaction and management of its business; that it made contracts for the shipment of freight to Superior from any point in the United States, and also from Superior to any point in the United States; that on the 20th day of December, 1890, the plaintiff resided in Superior and was the owner and possessed of a lot of household goods--a piano, chairs, tables, beds, bedsteads, etc., and a buggy, and also owned a stock of boots and shoes, shoemakers' tools, store fixtures, etc.; that on the said 20th day of December, 1890, this plaintiff desired to remove to the city of Trinidad, in the state of Colorado, to engage in business in said city, and he desired to have transported thither all his said household effects and his said stock of boots and shoes and shoemakers' tools and store fixtures, and this plaintiff, on said date, entered into a verbal contract with said defendant, in and by which the defendant agreed that the said plaintiff should load all of his said described property into a car to be furnished him by said defendant at its depot in the said city of Superior, and thereupon the said defendant agreed to transport said car and property to the city of Trinidad in the state of Colorado, and there safely deliver all said property to this plaintiff within a reasonable time from this date, in consideration of the sum of $ 100 freight charges, to be paid to the defendant by this plaintiff; that thereupon, on or about the said 20th of December, 1890, the plaintiff went to the said city of Trinidad, Colorado, and left one Ferd W. Saltow to load said property of plaintiff into the car agreed to be furnished by the said defendant, and to pay the freight of the same, and to see that the said property was shipped, as agreed; on the 27th day of December, 1890, said Saltow put all of the said property above described of the plaintiff's into a car furnished this plaintiff by the defendant, on its contract, at its depot in the city of Superior, Nebraska, for shipment to Trinidad, Colorado, to be there delivered to plaintiff by the defendant as per said contract, and the said Saltow, on behalf of the plaintiff, then and there paid to the defendant the $ 100 compensation, or freight money, agreed upon between plaintiff and the defendant, and for which the defendant agreed to transport and safely deliver the said property of this plaintiff; that thereupon the defendant issued and delivered to the said Saltow, for this plaintiff, a way bill, bill of lading, or receipt for said goods, but this plaintiff, nor the said Saltow, did not examine nor read such receipt or bill of lading, and never knew the contents of same until after the happening of the loss hereinafter mentioned, nor did the said defendant, or any of his agents or servants, at any time, until after the happening of the loss hereinafter mentioned, call the attention of this plaintiff or the said Saltow to the conditions or terms of said bill of lading or paper, and the plaintiff charges the fact to be that the said paper, or bill of lading or receipt, by whatever name it may be called, so delivered by the said defendant to the said Saltow for this plaintiff, was not the contract entered into between the plaintiff and defendant for the shipment of the goods as aforesaid, and that neither the plaintiff, nor the said Saltow, ever knew or consented to the terms of the said bill of lading, and had they, or either of them, known that it contained this clause, to-wit: "Car Emgt. & Stk., val. $ 5.00 cwt.,"--which clause means, car of emigrant goods and live stock, of the value of $ 5.00 per hundred weight,--would the said plaintiff or the said Saltow have allowed said defendant to take said goods; but the said defendant, nor any agent or servant of it, did not call the attention of said Saltow or this plaintiff to said clause in said receipt or bill of lading, but the said defendant and its agents fraudulently concealed from said Saltow and this plaintiff said clause in said bill of lading. The plaintiff further alleges that said clause in said bill of lading was never known to or seen by this plaintiff or the said Saltow, or either of them, until after the happening of the loss hereinafter mentioned, and that the same was not the contract of shipment made by this plaintiff with the said defendant for the shipment of said goods, but was an attempt on the part of the defendant to change, limit, and modify the contract actually made by said plaintiff with said defendant for the shipment of the goods; and the plaintiff further alleges that the said Saltow, when he received the said bill of lading or paper from the said defendant, supposed the same to be a mere receipt for the goods, and this plaintiff never saw the said bill of lading until after the destruction of the goods, as hereinafter stated; that said bill of lading or receipt, delivered by the said defendant to said Saltow for the said goods, was partly in writing and partly in print, and was and is, as nearly as the plaintiff can produce the same, in words and figures as follows:

"ATCHISON, TOPEKA & SANTA FE RAILROAD CO.,

"SUPERIOR, NEBR., STATION, Dec. 27, 1890.

"Received from W. E. Lawler the following described property, in apparent good order (or condition noted), contents and value unknown, to be transported over the road and delivered in like order to consignees, or the next company or carriers (if same is going beyond its line of road), for them to deliver to the place of destination of said property, it being distinctly understood that this company shall not be responsible as common carriers for said property beyond its line of road, or while at any of its stations awaiting delivery to such carriers, this company being liable as warehousemen only.

"To W. E. Lawler, Consignee, Trinidad, Colorado.

"Charges advanced, $

Marks and

Articles.

Weights, subject

numbers.

to correction.

Car Emgt. & Stk., O. R. Rel.

Val. $ 5.00 cwt

20,000

"Prepaid $ 100. Car 12144.

"W. G. TAYLOR, for the Company."

"And the plaintiff further alleges that the defendant and its agent, at the time and before said goods were put in said car and received by the said defendant, knew the character quality, quantity, and the destination and ownership of said goods. The said defendant entered into the contract, as above stated, with the...