Bower v. The Union Pacific Railroad Company

• Decision Date: 06 March 1920
• Docket Number: 22,246
• Citation: Bower v. The Union Pacific Railroad Company, 188 P. 420, 106 Kan. 404 (Kan. 1920)
• Parties: THOMAS W. BOWER, Jr., Appellant, v. THE UNION PACIFIC RAILROAD COMPANY, Appellee
• Court: Kansas Supreme Court

188 P. 420

106 Kan. 404

THOMAS W. BOWER, Jr., Appellant, v. THE UNION PACIFIC RAILROAD COMPANY, Appellee

No. 22,246

Supreme Court of Kansas

March 6, 1920

Decided January, 1920.

Appeal from Geary district court; ROSWELL L. KING, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE OF COMMON CARRIER--Not Imputable to Shipper of Goods.The negligence of a common carrier is not imputable to the shipper so as to prevent the latter from recovering damages from another carrier or third person through whose negligence, with that of the first carrier, the goods have been injured.

James V. Humphrey, and Arthur S. Humphrey, both of Junction City for the appellant.

R. W. Blair, T. M. Lillard, and O. B. Eidson, all of Topeka, for the appellee.

OPINION

PORTER, J.:

This is a companion case to the preceding one, but the question involved is wholly different.It is, whether the negligence of a carrier is imputable to the shipper so as to prevent the latter from recovering damages from another carrier or third person through whose negligence, with that of the first carrier, the goods may have been injured?Acker, the plaintiff in the preceding case, was a common carrier of goods by means of trucks.Bower was the owner of the goods being transported and which were damaged by the collision of the truck and the defendant's train.In this case the demurrer to the evidence was sustained upon the theory that the negligence of Acker and his driver is imputed to Bower, who brings the case here for review.

In support of the court's ruling the railway company makes the contention that the rule which permits one injured by the concurrent negligence of two wrongdoers to recover his damages from either or both has no application to the case of an injury to goods in the hands of a common carrier.It is said the position of a carrier is that of a shipper, he as bailee is the agent of the bailor; that the carrier is more than the mere agent or servant of the shipper, because the carrier becomes absolutely liable for any loss to the goods, the only exceptions being for a loss by the act of God or the public enemy.From this position another step is taken, and the carrier is said to occupy, temporarily at least, the relation of owner, so that his negligence must be imputed to the actual owner.Common carriers of goods are bailees; because of the extraordinary liability imposed upon them by the law, they are classed as extraordinary bailees.But this is the only respect in which the delivery of goods to a carrier for transportation differs from that of an ordinary bailment for hire.While it is sometimes said that the carrier is an insurer, this is but another way of expressing his absolute liability for any loss or damage to the goods while in his possession, save in the excepted cases.But the shipper has no control over the servants and employees of the carrier; he has no right to discharge an unfaithful servant or employee of the carrier.He does not ordinarily accompany the goods and has no opportunity or right to exercise any control over the manner in which the carrier performs his obligations.

The general doctrine upon which defendant relies had its origin in two English cases-- Vanderplank v. Miller, 1 Moody & Malkin 169, and Thorogood v. Bryan,8 C. B. 115.They are companion cases, although the Vanderplank case involved a loss of goods and the Thorogood case involved an injury to a passenger.In the Vanderplank case, plaintiff sought to recover the value of goods sunk in a collision of the vessel carrying them and another vessel.It was merely held that if there was want of care on both sides, the plaintiff could not recover.Nothing was said with respect to any difference between the rights of the shipper and those of the carrier.The case was followed in this country in Simpson v. Hand,6 Whart. 311.In the opinion by Chief Justice Gibson, it was held that the action could not be maintained by the owner of goods on board a vessel against the owner of another vessel to recover damages caused by a collision of the two vessels.The rule that for a loss from mutual negligence neither party can recover was held to apply because the carrier was the agent of the shipper.A distinction was sought to be made between the case of an injury to a shipper's goods, because in case of a passenger there is no bailment.It was said in the opinion:

"A carrier is liable to his employer at all events; and to make his associate in misconduct answerable for all the consequences of it, would make one wrong-doer respond, in ease of another, for an injury that both had committed.It is more just that the carrier should answer to his employer, rather than one in whom the employer had reposed no confidence."(p. 322.)

In Duggins v. Watsonet al., 15 Ark. 118, the doctrine of Vanderplank v. Miller was approved and the opinion by Chief Justice Gibson followed.It was followed again in The Arctic Fire Ins. Co. v. Austin,69 N.Y. 470, where it was held that the possession of a carrier is that of the merchant shipper; he is the bailee and quasi the agent of the shipper.Whatever he does in the course of the service and bailment he does as the agent and representative of the owner.The New York court, in the opinion, expressly declared that there is no analogy between the cases in which passengers in one conveyance have been held entitled to an action against the owner of either or both of the vehicles from the negligent management of which injury has been received, on the ground that there is no bailment, no agency in the case of a passenger, and no absolute obligation of the carrier to deliver his passenger safely.

Both the Vanderplank case and Thorogood v. Bryan have been repudiated, not only in England, but in this country.The doctrine was repudiated by the Pennsylvania court in the case of Bunting v. Hogsett,139 Pa. St. 363.In the opinion it was said:

"But Thorogood v. Bryan[8 Com. B. 115, 65 E.C.L. 114], which is the leading case, has recently been overruled in the English court of appeals: The Bernina, Mills v. Armstrong,12 Prob. Div. 58; and the doctrine, although formerly accepted in many of the states, is now generally disapproved.The authorities in England, and the great current of authority in this country, are against it.The cases are collected in Dean v. Pennsylvania Railroad Co.[129 Pa. 514, 520; 15 Am. St. Rep. 733, 18 A. 718]. . . .What was there said was given as an individual opinion, merely, and was, to some extent, perhaps, obiter dictum, but we are now unanimously of opinion that the views, there expressed somewhat in advance, contain a proper exposition of the law."(p. 376.)

In the opinion it was further said:

"It is true, the carrier may be subjected to a higher degree of care than his cotortfeasor, but this affords no reason why either or both of them should not be held to that degree of care, respectively, which the law imposes upon them, and to be answerable in damages accordingly."(p. 376.)

In Little v. Hackett,116 U.S. 366, 29 L.Ed. 652, 6 S.Ct. 391, it was said in respect to the supposed identification of the passenger with the carrier:

"There is no such identity.The parties are not in the same position.The owner of a public conveyance is a carrier, and the driver or the person managing it is his servant.Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world."(p. 375.)

The distinct reason given by the English courts for abandoning the doctrine of the Thorogood case was because it was said to be a necessary corollary to the doctrine that if the passenger made the carrier his agent, he was not only deprived of his remedy against third persons, but must be affirmatively liable to third persons for any injuries they sustained by negligent acts of the carrier.We think the same absurdity attaches to the doctrine contended for by the defendant.If the shipper may not recover from a third person for injury...