Carr v. Schafer

• Court: Colorado Supreme Court
• Writing for the Court: HAYT, J., ( after stating the facts as above.)
• Citation: Carr v. Schafer, 15 Colo. 48, 24 P. 873 (Colo. 1890)
• Decision Date: 30 June 1890
• Parties: CARR v. SCHAFER et al.

24 P. 873

15 Colo. 48

CARR v. SCHAFER et al.

Supreme Court of Colorado

June 30, 1890

Appeal from district court, Pitkin county.

This appeal is prosecuted under the act of 1885. It appears from the abstract of record that on the 1st day of November, 1885 appellant, who was defendant below, was about to commence the business of transporting or freighting goods with horses or mules and wagons from the railroad station at St. Elmo through and over the mountains to the town of Aspen. Parcells, appellee, was at St. Elmo, and had there, in a car a lot of nursery stock consisting of trees, shrubs, plants and roots, in bales, barrels, and boxes, and applied to appellant to haul them to Aspen. Woods, a witness, was engaged at St. Elmo in a commission and forwarding business and assisted Parcells in finding transportation and shipping the goods, and acted as the agent of Parcells after his departure. Parcells, with the assistance of Woods, made a contract with Carr to deliver the goods at Aspen. Parcells left St. Elmo before a written contract was made, but, before he left, Woods submitted a memorandum to him in regard to the contract, which was approved. Afterwards, the contract to be found in the opinion was made by Woods from such memorandum, and signed by Carr. Before making the contract, Parcells examined the wagons of defendant, and approved of them. Woods, as the agent of Parcells, attended to the loading of the goods, and by packing with hay and other material protected them as far as practicable from freezing. The goods were packed in there wagons, which left St. Elmo on November 3d for their destination. The ordinary or average time for making the trip with freight between the two towns was shown to have been five days, when the roads were in an ordinarily good condition. On the second day out a severe snow-storm was encountered, and the weather turned very cold. This delayed the teams. The goods did not arrive at Aspen until the 21st and 22d of the month, and were then found to be badly damaged by freezing. Appellees refused to receive them, and brought suit to recover the value. The complaint is as follows, omitting portions unnecessary to be considered: 'The plaintiffs complain and allege of the defendant (1) that the amount involved in this action does not exceed the sum of two thousand dollars; (2) that at the times hereinafter mentioned the defendant was a common carrier of goods for hire between the places hereinafter named; (3) that on the 2d day of November, A. D. 1885, at the town of St. Elmo, county of Chaffee, of the state aforesaid, the plaintiffs delivered to the defendant certain goods and chattels, to-wit: One bale of trees, three barrels of nursery stock, six boxes of trees, five boxes of strawberry plants, the property of the plaintiffs, of the value of seventeen hundred and twenty-six dollars and sixty-five cents; and the defendant, as such carrier, received the same, to be by him safely carried to the town of Aspen, of the county of Pitkin, of the state aforesaid, and there to deliver to the plaintiffs, on the 5th day of November, A. D. 1885, for a reasonable reward to be paid by the plaintiffs therefor, to-wit, the sum of $1.25 per hundred-weight; (4) that the defendant did not fulfill his agreement to carry safely the said goods, and to deliver the same to the plaintiff in the said town of Aspen on the 5th day of November, A. D. 1885, but on the contrary, although the period between the said day when said goods were received by the defendant and the said day when they should have been delivered to plaintiffs was a reasonable time for the carrying of the same from the said town of St. Elmo to the said town of Aspen, yet the defendant so negligently and carelessly conducted, and so misbehaved, in regard to the same, in his calling as common carrier, that he failed to deliver the same or any part thereof until the 22d day of November, A. D. 1885, in the said town of Aspen; (5) that the defendant did not safely carry and deliver the said goods pursuant to said agreement; but on the contrary, the defendant so negligently conducted, and so misbehaved, in regard to the same, in his calling as common carrier, that the said goods were wholly lost to the plaintiffs to their damage, in the said sum of seventeen hundred and twenty-six dollars and sixty-five cents. Prayer for judgment.' Defendants answered specifically denying every allegation of the complaint. The case was tried by a jury resulting in a verdict and judgment against appellant for $562.50, and costs.

Wilson & Stimson, for appellant.

W. W. Cooley, for appellee.

HAYT J., ( after stating the facts as above.)

It is stated in the complaint that appellant was a common carrier and, although denied in the answer, it seems to have been conceded at the trial that such was the capacity in which he contracted. The trial court assumed by its instructions that his liability was to be controlled by the law applicable to common carriers, and the correctness of such assumption is not challenged upon this appeal. In determining his liability, we shall therefore assume that he contracted as a common carrier, and measure his responsibility for the damage resulting from the freezing of the goods in transit by the strict rules governing such charriers, except so far as the same were modified by the special contract of the parties offered in evidence. In reference to such special contract, the following is the substance of the testimony of H. N. Wood, one of the firm of Wood Bros., and it is not contradicted: 'That in November, 1885, witness was a forwarding agent at St. Elmo; that as such forwarding agent he received from the Union Pacific Railroad Company at St. Elmo a lot of goods marked 'Nursery Stock, etc.,' consigned to H. A. Parcells & Co., plaintiffs; that he delivered these goods to defendant, Carr, for transportation to Aspen; that he obtained these goods from the railway company on presenting the bill of lading under which they had been shipped from Denver to St. Elmo; this bill of lading had been given to witness by plaintiff Parcells; that, at Parcells' request, witness went with him to find a...