Baltimore & O.R. Co. v. McLaughlin

• Decision Date: 14 April 1896
• Docket Number: 387.
• Citation: 73 F. 519
• Parties: BALTIMORE & O.R. CO. v. McLAUGHLIN.
• Court: U.S. Court of Appeals — Sixth Circuit

73 F. 519

BALTIMORE & O.R. CO. v. McLAUGHLIN.

No. 387.

United States Court of Appeals, Sixth Circuit.

April 14, 1896

This action was begun in the circuit court of the United States for the Southern district of Ohio, Eastern division, by John R. McLaughlin, against the Baltimore & Ohio Railroad Company to recover damages for an injury sustained by him while riding upon a freight car of the defendant, with two horses which he had shipped from Bloomingburg, Ohio, on the defendant's railroad, to Columbus, Ohio. In the original petition the plaintiff made no averment as to his own citizenship, and simply averred that the defendant company was an association of persons duly incorporated under the laws of the state of Maryland, and that on or before the 14th day of April, 1891, the defendant was in the occupancy of and operating the Columbus, Cincinnati & Midland Railroad, a line of railroad running from Columbus, Ohio, in Franklin county, to Cincinnati, Ohio, and was engaged in the business of carrying passengers and hauling freight over the same for hire and reward. A demurrer was filed to this petition, for want of jurisdiction, which, by consent of counsel for plaintiff, was sustained, and leave was given to file an amended petition within five days from the entry. In that amended petition the averments as to jurisdiction were as follows: 'Now come John R. McLaughlin, plaintiff herein by leave first obtained, and for his cause of action against the said Baltimore & Ohio Railroad Company, defendant herein, says that the plaintiff herein is a citizen of the state of Ohio, resident at Columbus, Franklin county, Ohio that the defendant is an association of persons duly incorporated under the laws of the state of Maryland; that on or before the 14th of April, 1891, the defendant was in the occupancy of, and operating, the Columbus, Cincinnati & Midland Railroad, a line of railroad running from Columbus, Ohio, and was engaged in the business of carrying passengers and hauling freight over the same for hire and reward. The amended petition was in every respect like the original petition, except the averment as to the citizenship of the plaintiff. The answer of the defendant admitted that it was a corporation, and organized as stated in said amended petition, and that the plaintiff was a citizen of the state of Ohio, as therein stated. The accident occurred by the giving way of a bridge or trestle across a creek. The negligence charged was that the bridge had not been maintained in a safe and proper condition, and that the timbers had been allowed to rot. There was a conflict of evidence as to what was the cause of the accident, the defendant claiming that it was a broken axle. This issue was submitted to a special finding of the jury. The third question submitted to the jury was: 'What was the cause of the wreck of the train on which the plaintiff was riding when injured? Ans. Defective trestle. Fourth. Was the defendant, its agent or servants, guilty of negligence causing the injury to the plaintiff? If yes, in what did such negligence consist? Ans. Yes. For want of proper care of trestle. ' 'Sixth. Was not the accident which caused the plaintiff's injuries caused by a broken axle, which produced the derailment of the train, and the breaking down of the trestle on defendant's road? Ans. No.' There was a further conflict of evidence upon the question whether the contract of shipment by McLaughlin with the station master at Bloomingburg was written or verbal. A written contract was produced, and McLaughlin denied that he had ever signed the firm name as it appeared signed to the contract, but said that the contract was entirely verbal. This question was submitted to the jury as follows: 'First. Was the contract of shipment in writing, or verbal? Ans. Verbal. ' The averment of the amended petition with reference to the contract between the plaintiff and the railroad company was as follows: 'That on the 13th day of April, 1891, the said plaintiff herein, for a certain reward paid to said defendant herein, shipped certain live stock, to wit, two horses, from Bloomingburg, Ohio, a station on said Columbus, Cincinnati & Midland Railroad, to Columbus, Ohio; that at the instance and request of said company and its agents, and for reward paid said defendant, and with their knowledge and consent, he, the plaintiff, took passage on the same car with, and in charge of, said stock. ' The character of the contract, as alleged by the plaintiff, was shown by the following evidence of one of the plaintiffs: 'The agent told me to put the horses on the car, and to get on the car and come to Columbus with the horses, and told me that he would make all the arrangements, and leave the papers in a box some place about the depot, so that the engineer and conductor, or whoever was supposed to do that on the train, would get them; and I, according to his instructions, loaded the horses, and about 11 o'clock at night, or probably midnight, I went down, and got on the car, and fixed one house in one end of the car, and the other horse in the other end of the car, tied their heads towards each other, and their heels towards the end of the car; tied with ropes, so that the ropes would hold the horses in the center of the car; one rope to one side, and the other to the other side,-- each side of the car. I fixed a cot in the middle of the car, and laid down and went to sleep. When the train came along I woke up, and went to the car door, and called to the conductor. ' He further said that the contract was oral, and that he was to pay 11 or 12 cents a hundred pounds for the transportation of his horses from Bloomingburg to Columbus. It was in the evidence that the conductor spoke to him, and knew of his presence upon the train. It was contended by the defendant below that the station agent had no authority to ship stock, or to permit drovers or others to accompany them, except under a special contract for the transportation of live stock, which the defendant claimed McLaughlin had signed. This contract provided, among other things, in its third clause: 'The owner, shipper, or consignee is to load, transfer, and unload said stock at his risk, and will examine for himself the cars furnished for transportation, and all the means used in loading and unloading, to see that they are of sufficient strength, or of the right kind, and in proper order and repair, and properly adjusted for the purpose; and said company is not to be responsible for any damage because of any defects in said cars, or in said means of loading and unloading. The owner, shipper, or his agent or agents in charge of said stock shall ride on the train on which the same are transported at their own risk of personal injury from any cause, hereby releasing said company from any claim or damage on account of such injuries...