Baltimore & O. R. Co. v. Dever

• Decision Date: 13 January 1910
• Citation: 75 A. 352,112 Md. 296
• Parties: BALTIMORE & O. R. CO. v. DEVER.
• Court: Maryland Court of Appeals

75 A. 352

112 Md. 296

BALTIMORE & O. R. CO.

v. DEVER.

Court of Appeals of Maryland.

Jan. 13, 1910.

Appeal from Circuit Court, Harford County; Geo. L, Van Bibber, Judge.

Action by Benjamin M. Dever against the Baltimore & Ohio Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed, and new trial awarded.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, THOMAS, PATTISON, and URNER, J.I.

Fred. R. Williams and Stevenson A. Williams, for appellant.

Harry S. Carver and John S. Young, for appellee.

BOYD, C. J. The appellee recovered a judgment against the appellant for damages sustained by him by reason of the alleged negligence of the appellant in the transportation of cattle, which resulted in the cattle contracting a disease known as the "Texas" fever. There are four counts in the declaration which are before us; demurrers to two others having been sustained. The first alleges that the plaintiff on August 23, 1906, placed in charge of the defendant 75 head of western steers, in good health and condition and free from disease, at Kansas City, Mo., for shipment to Harford county, Md., which the defendant undertook to carry safely and carefully; that said steers reached Parkersburg, W. Va., on or about the 27th of August, when they were unloaded and fed by the defendant in its yards and pens, and were then reloaded on the cars of the defendant at Parkersburg; that when they were unloaded at Parkersburg to be fed by the defendant, as it was its duty to do, the defendant carelessly and negligently failed to take the proper care and precaution in the pens and yards aforesaid in feeding and caring for said steers in order to protect them from disease and sickness, as it was required to do, and, in consequence thereof, they contracted a fever, known as the "Tick" or "Texas" fever, while in the Parkersburg yards or pens of the defendant. It is then alleged that, by reason of the fever so contracted by and through the carelessness and negligence of the defendant, a large number of the steers died after they reached their destination, in Harford county, the plaintiff was put to great expense and labor in caring for others affected with the disease, and was injured in his business as a cattle dealer, that the injury complained of was not due to any fault or want of care on the part of the plaintiff, but was due and owing to the carelessness and negligence of the defendant by and through its wrongful and negligent acts aforesaid. The second count alleges that it was the duty of the defendant to provide clean cars for transportation of said steers, and clean pens and yards in which to feed them en route from Kansas City to their destination in Harford county, but the defendant negligently and carelessly permitted its cars in which the steers were shipped, and its yard and pens in which they were fed, to become dirty and charged and infected with germs of disease. This count differs from the first mainly in including the cars as well as yards and pens, in not naming any particular yard and pens, and in not naming the disease. The third and fourth counts were for 30 head of western steers, shipped from East St. Louis to Harford county; the third being in other respects substantially as the first, and the fourth substantially as the second. Demurrers to these counts were overruled, but we do not find any reversible error in those rulings, as in our judgment the allegations are sufficiently definite. The only ground for complaint we observe is the claim for damages to the plaintiff's business; but, as that was eliminated by the thirteenth prayer, as modified, no injury was done the appellant by overruling the demurrers. The defendant filed a general issue plea and three special pleas. The second alleges that the claims of the plaintiff set up in the declaration are based on an act of Congress approved February 2, 1903 (Act Feb. 2, 1903, c. 349, 32 Stat. 791 [U. S. Comp. St. Supp. 1909, p. 1183]), and upon certain regulations adopted and promulgated by the Secretary of Agriculture on March 13, 1903, pursuant to the authority conferred upon him by said act of Congress. It is then alleged that the act of Congress and regulations adopted by the Secretary of Agriculture are repugnant to the Constitution of the United States, and in excess of the powers of Congress and of the Secretary under the Constitution. The third refers to an act of Congress approved March 3, 1905 (Act March 3, 1905, c. 1496, 33 Stat. 1264 [U. S. Comp. St. Supp. 1909, p. 1185]), and regulations made and promulgated by the Secretary of Agriculture under that act, and alleges that they were unconstitutional. The fourth avers that the plaintiff relies on those two acts of Congress and the rules and regulations made and promulgated by the Secretary of Agriculture, and alleges that the acts of Congress do not authorize, permit, or sanction a right of action for damages, but, on the contrary, provide that the parties violating them shall be guilty of a misdemeanor, and on conviction be punished as set forth in the plea. The plaintiff demurred to the second, third, and fourth pleas, and the demurrers were sustained. We think they were properly sustained, inasmuch as the declaration shows that the action was based on the common-law rights and liabilities of the parties, and not upon the acts of Congress, or upon the rules and regulations made by the Secretary of Agriculture. Seven bills of exception in reference to rulings on evidence are in the record, and the eighth embraces the rulings on the prayers. The plaintiff offered 11 prayers, but all were refused excepting the tenth, which refers to the measure of damages. The defendant offered 13. The first, second, third, fourth, and twelfth were rejected, and the fifth, sixth, seventh, eighth, ninth, tenth, and eleventh were granted as offered, and the thirteenth was granted as modified. The defendant excepted to the granting of the plaintiff's tenth prayer and to the refusal of its first, second, third, fourth, and thirteenth prayers; the twelfth not being included in the bill of exceptions.

It will be well to first consider the extent of the common-law liability of a carrier, if any, for such injuries as are complained of in this case. In this state it is settled that: "in the absence of an express contract, the common-law duty and liability of a common carrier for the safe carriage and due delivery of live animals are the same as that for the carriage and delivery of other property; the liability in all cases being qualified by the nature and inherent tendencies of the thing carried. In undertaking the carriage of live stock, therefore, the carrier assumes the obligation to deliver safely and within a reasonable time, having due respect to the circumstances of the case." P. W. & B. R. Co. v. Lehman, 56 Md. 231 ; B. & O. R. R. Co. v. Whitehill, 104 Md. 304, 64 Atl. 1033. In M. & M. Trans. Co. v. Eichberg, 109 Md. 227, 71 Atl. 994, it was said, in considering the validity of a contract with reference to the burden of proof of negligence, that: "in the absence of contract, the law makes the carrier an insurer, and, as the goods it carries may be injured or destroyed by many causes not due to its own negligence or want of care, the carrier is as much entitled to be paid a premium for its insurance of their safe delivery at the place of destination as for the labor and expense of conveying them there." in B. & O. R. R. Co. r. Green, 25 Md. 89, and Fruit Co. v. Trans. Co., 104 Md. 567, 65 Atl. 415, 8 L. R. A. (N. S.) 240, common carriers are also spoken of as insurers. Some of the cases the appellant cites we do not deem applicable to this case, such as W. M. R. R. Co. v. Shirk, 95 Md. 649, 53 Atl. 969, and Same v. Landis, 95 Md. 750, 53 Atl. 1124, and it is not necessary to enter into a discussion of them. They involved wholly different questions, the former being for the death of a passenger, and in the latter the liability depended upon whether the injury occurred upon the defendant's road or upon a connecting line. In 6 Cyc. 381, it is said: "Where the destruction of or injury to the goods is due to their inherent nature and quality, or defects therein, the carrier is not liable if his own negligence did not occasion or contribute to the injury. And perhaps it may be stated as a general proposition that the carrier is not liable for loss happening from the operation of natural causes. In general, as already stated, a common carrier of live stock is subject to the same rule of liability as a common carrier of other goods or property, but, if there is loss or injury due to the peculiar nature and propensities of the animals, then, under the principle stated in the preceding paragraph, the carrier is excused, unless the loss or injury could have been prevented by the exercise of reasonable foresight, vigilance, and care on the part of the carrier."

Is, then, the liability of a carrier of live stock to be carried to the extent of holding the carrier responsible as an insurer from death or injury to cattle as the result of a disease such as this, or shall the shipper be required to prove negligence on the part of the carrier? We have found no such case which has gone so far as to hold the carrier liable without evidence of negligence, and it would seem to be an unwarranted application of the general common-law rule to hold a carrier responsible for injuries resulting from Texas fever merely because the cattle had been carried by it. In 5 Am. & Eng. Ency. of Law, 466, we find this statement: "Independently of statutory provisions, a carrier is liable for the loss of or damage to cattle intrusted to it for transportation where the loss or damage is caused by their being exposed to infection through the carrier's negligent conduct in placing them with diseased cattle, or in pens or cars where such cattle have been staying." Another rule is thus stated on page 446 of that volume: "The...