Baltimore v. Rathbone.

• Decision Date: 31 January 1865
• Citation: Baltimore v. Rathbone., 1 W.Va. 87 (W. Va. 1865)
• Court: West Virginia Supreme Court
• Parties: Baltimore and Ohio Railroad v. Rathbone.

1 W.Va. 87

Baltimore and Ohio Railroad

v.Rathbone.

Supreme Court of Appeals of West Virginia.

January Term, 1865.

1. It is competent for a common carrier to diminish and restrict his common law liability by special coutract; and he may absolve himself in this manner from all liability resulting from every degree of negligence however gross, (if it fall short of misfeasance or fraud) provided the terms and language of the contract are so clear and definite, as to leave no doubt that such was the understanding and intention of the parties.

2. Where a party declares in assumpsit and seeks a recovery upon a special contract, he is bound by the terms thereof.

3. Where a party declares in assumpsit against a common carrier or bailee For hire, without regard to the bills of lading which he;receives from the carrier for the transportation of goods, and which appear from their face to be special contracts to the stipulations whereof both parties ar\ equally bound, he cannot introduce the bills in evidence, they not being applicable to any of the counts in the declaration.

4. The terms, "at the owner's risk," in the bills of lading in this case, which are declared to be special contracts, taken in connection with the other stipulations therein, are held to limit the carrier to such loss or damage only as might result from ordinary neglect: which is defined to mean that want of care and diligence which prudent men usually bestow on their own concerns.

5.The English rule, that, in cases of contract of shipment " at the owner's risk," in general terms, the question of diligence and neglect is out of the case, and that the carrier or bailee is wholly absolved from all responsibility whatever, is held to be. contrary to that prevailing in American courts.

5. It is, therefore, error in the circuit court to refuse to instruct the jury, that, if they believed the contracts for transporting goods were special contracts, that the plaintiff could only recover under such special contracts; and that if they believed the goods were lost by fire, and that the carrier or its agents and servants exercised ordinary care and diligence in transporting them, that the defendant was not liable; and that if they believed the goods were shipped and transported under special contracts, and that they were lost by fire, and that the carrier, its agents and servants exercised such care as a prudent man would, as to his own goods, in protecting them from unforeseen accident which diligence and care could not guard against, that the plaintiff could not recover.

7. Where a declaration in assumpsit charges common carriers or bailees for hire, for loss or damage generally, and an agreement is proven showing that the transportation was at the plaintiff s risk, which imposes a different liability than that charged, and a verdict is rendered against the carriers, it should be set aside and a new trial granted for reason of the variance.

John C..Rathbone brought an action of trespass on the case in assumpsit, against the Baltimore and Ohio Railroad, in Wood county, in May, 1863. The declaration contained four counts, the first of which charged that at the special instance and request of the defendant the plaintiff caused to be shipped on board of the cars of the defendant, 1128 barrels of petroleum oil at Parkersburg, West Virginia, and the defendant undertook to safely and securely transport the same by its road to Baltimore and from thence by the Philadelphia, Wilmington and Baltimore railroad, and the Camden and Ambog railroad, to be delivered to Wales, Wetmore & Co., at Steamers' Dock, New York; but that, by the carelessness and negligence of the defendant, only 998 barrels of the oil was delivered, and that the residue was lost. The second count charged that the defendant as a common carrier for hire between Parkersburg and Baltimore, at its instance and request, caused to be delivered to it certain barrels of petroleum oil at divers times belonging to the plaintiff, amounting in the aggregate to 1128 barrels, to be safely and securely transported to Baltimore at and for the reward of 80 cents per hundred pounds; but that, by its negligence and carelessness, 130 barrels were wholly lost to the plaintiff.

The third count was similar to the second in charging the defendant as a common carrier, but averred that the oil was to be safely transported to and delivered at New York for the reward of 80 cents per hundred pounds; and that it adopted the railroads before mentioned for the purpose, and that the defendant fraudulently intending to deceive and injure the plaintiff, did not deliver the oil at New York, but from the negligence, carelessness and unskilfulness of the servants of the defendant the cars on which the oil was being transported, collided with other cars of the defendant on its own road, whereby the cars were set on fire and the oil of the plaintiff was consumed and wholly lost to him.

The fourth count was the ordinary insimul comrpidassent The defendant demurred to the declaration, which was overruled, and the general issue was pleaded.

The jury found a verdict for the plaintiff, and assessed the damages at 1, 250 dollars with interest from the 15th of February, 1863, and the court entered judgment thereon. Before the judgment was entered, the defendant moved the court to set aside the verdict of the jury, upon the ground that it was contrary to the evidence; but the court overruled the motion, and the defendant then prayed the court to certify the facts proven on the trial.

It was proven that on, and before the 6th of January, 1863, the defendant's regular charge for transporting petroleum oil from Parkersburg to the city of New York was one dollar and twenty cents for 100 pounds that on, or about that day, the plaintiff by his agent applied to the defendant, to obtain a reduction of said freight and charge for transporting said oil, to, and from the places aforesaid that on, or about the 21st of January, 1863, the defendants agreed to ship, and transport such oil from Parkersburg to New York at owner's risk, at the price and charge of eighty cents per 100 pounds, that these terms were made known to, and accepted by the plaintiff, and that all the oil shipped by the plaintiff over the defendant's railroad, referred to in this cause, was on the terms last mentioned. That on the evening of the 29th of January, the defendant's car, No. 2260 loaded with the plaintiff's oil, left Parkersburg by the way of Cumberland en route for the city of New York that the defendant's car No. 6164, loaded with the plaintiff's oil, left Parkersburg on the morning of the 30th day of January, 1863, en route to the city of New York via Cumberland; that at Cumberland, or very near that place, the said cars No. 2260 and 6164 were placed in the same train of cars, which train was drawn by the defendant's engine, No. 214. That the first and second cars immediately in the rear of said engine were loaded, one with coal, and the other with lumber, and immediately behind said two last named cars, the said cars No. 2260 and 6164, (which were open cars or gondolas,) in which the barrels of oil, standing on end, wrere placed. There were twenty-three other cars loaded with tobacco one with lard, and the others with other goods which were house cars enclosed. That cars that left Parkersburg ought to reach Cumberland, according to the regulations of the defendant's road, in about twenty-four hours after they left Parkersburg that the engine attached to said cars with the oil, broke down at Cumberland. That the plaintiff, under like contracts as those above mentioned, shipped 2, 000 barrels of such oil from Parkersburg to New York at the same rate and terms. It wras also proven that as said oil was delivered to the defendant to be shipped as aforesaid by the agent of the plaintiff, the agent of the defendant delivered to the agent of the plaintiff seven certain bills of lading.

The bill of the particular oil alleged to have been lost, which is the same in substance as the others, is as follows:

" January 30th, 1863.

Received of J. G. Blackford the following packages marked and numbered as described below, in apparent good order (contents and value unknown) to be transported from Parkersburg by the Baltimore and Ohio Railroad to Baltimore, and thence by P. W. and B. and Camden and, Amboy Rail Roads to New York, there to be delivered to Wales, Wetmore & Co., or assigns, at Steamers' Dock, on payment of 80 cents per hundred and charges $. And whereas in the transit from Parkersburg to their said place of ultimate destination, the packages aforesaid must pass through the custody of several carriers it is understood, as a part of the consideration on which said packages are received, that the exceptions from liability, made by such carriers respectively, shall operate in the carriage by them respectively of said packages, as though herein inserted at length; and especially that neither said carriers, nor either, nor any of them shall be liable for leakage of any kinds of liquids, nor for losses by the bursting of casks, or barrels of liquids, arising from expansion and other unavoidable causes. Breakages of any kind of glass, carboys of acid, or articles packed in glass, stoves, or stove furniture, castings, machinery, musical instruments of any kind, packages of eggs, or for loss or damage on hay, hemp, cotton, or the evaporation or leakage of alcohol, or leakage of oil of any description, or for damage to perishable property of any kind, occasioned by delays from any cause, or change of weather, or for damage or loss by fire, or for loss and damage on the sea and rivers. And it is further especially understood, that for all loss or damage occurring in the transit of said packages, the legal remedy shall be against the particular carrier only, in whose custody the said packages may actually be at the time of the happening thereof, it being understood that the said Baltimore and...