Ausk v. Great Northern Ry. Co.
| Decision Date | 07 May 1901 |
| Docket Number | 6731 |
| Citation | 86 N.W. 719,10 N.D. 215 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by Peter Ausk against the Great Northern Railway Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
M. A Hildreth, for appellant.
This action is brought to recover damages for the killing of a certain horse belonging to the plaintiff. The complaint (omitting allegation that defendant is a common carrier) states, in substance, that on or about the 25th day of March 1900, the plaintiff, at Grand Rapids, Minn., delivered to the defendant, and it then and there received, as such carrier one horse of the plaintiff's, of the value of $ 175, to be safely and securely conveyed by said defendant from said Grand Rapids, Minn., to the city of Moorhead, Minn., there to be safely delivered to the plaintiff, for a certain reward, which the plaintiff then and there paid to the said defendant as aforesaid; that the said defendant did not safely convey and deliver said horse as it had undertaken to do, but, on the contrary, conducted itself so carelessly and negligently in and about carrying and transporting the same that said horse was, in consequence thereof, killed, causing damage to the plaintiff in the sum of $ 175. The defendant interposed a general denial as an answer. The trial court directed a verdict for the defendant at the close of plaintiff's case. Judgment of dismissal was entered, from which the plaintiff appeals, specifying many alleged errors. It will be necessary for us to consider but one of such specifications of error, viz.: "The court erred in directing a verdict in favor of the defendant and against the plaintiff for the dismissal of the action on the ground that the plaintiff had failed to make out a case."
On the trial, one John Ausk was a witness on behalf of the plaintiff, and testified that he shipped a car load of horses over the Great Northern road from Grand Rapids, Minn., to Moorhead on March 25, 1900; among such horses being the one that was killed. He testified further that such horses were thus shipped under a written contract, which was lost, and that this car load of horses was unloaded at Grand Forks, and reshipped in a Great Northern car, to be delivered at Moorhead. He testified concerning the negligent operation of the train, as he claimed, and the consequent injury to the horse. On his cross-examination, he identified the contract shown him as the one he had signed at Grand Rapids, under which his and his brother's horses had been shipped. This contract was received in evidence, under plaintiff's objection, as part of this cross-examination. The defendant's counsel thereupon moved the court to strike out all of this witness' oral testimony relating to the making of the contract of shipment, and the delivery of the horses under such oral contract, on the ground that the same was secondary and incompetent, which was granted. The written contract thus received in evidence was a contract for the shipment of a car of horses, in direct terms entered into "between the Eastern Railway Company of Minnesota, party of the first part, and John Ausk, party of the second part." Such contract is signed by "G. R. Reiss, Agent for Eastern Railway Co. of Minnesota, and by John Ausk, Shipper." At the top of the contract, in large letters, is printed, "Great Northern Railway Line," and right under these words, in smaller letters, "Eastern Railway Company of Minnesota." On the right hand margin of the contract, under the words "Issuing Agent," are stamped the words, "Great Northern Railway, Grand Rapids, Minn., March 25, 1900." On the same margin are written the words, "Car No. 8,394, G. N." On the back of such contract is a stipulation signed by John Ausk, releasing the Eastern Railway of Minnesota from all liability for injury to himself, in consideration of free passage of himself from Grand Rapids to Moorhead and return. As we construe this contract, it is not a contract with the defendant, but is one with the Eastern Railway Company of Minnesota. The fact that a car of the Great Northern was used, or that the stamp of the Great Northern Railway was made on the contract, does not seem to us of any particular significance as showing that the Great Northern was a party to the contract, or directly bound by it as a party to it. That it was a contract with the Eastern Railway Company seems too plain for argument; and it is also apparent, from the reading of the contract, that the Eastern Railway Company is a distinct company from the Great Northern. There is nothing in the evidence, outside of the contract, nor in the complaint, tending to show any connection or relation between these two companies, nor anything to show where their lines connect, nor anything to show that the Great Northern is bound by any contract or violation of duty of the Eastern Railway Company. We think that it was perfectly proper to permit a preliminary cross-examination of the witness as to this contract. He had testified to a shipment. To ascertain whether such shipment was...
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