Chaimson v. Am. Ry. Express Co.

• Decision Date: 08 July 1922
• Citation: 178 Wis. 286,189 N.W. 529
• Parties: CHAIMSON v. AMERICAN RY. EXPRESS CO.
• Court: Wisconsin Supreme Court

178 Wis. 286

189 N.W. 529

CHAIMSON

v.AMERICAN RY. EXPRESS CO.

Supreme Court of Wisconsin.

July 8, 1922.

Appeal from Circuit Court, Shawano County; E. V. Werner, Judge.

Action by Oscar Chaimson against the American Railway Express Company. From a judgment for plaintiff, defendant appeals. Reversed.

Judgment was entered accordingly.

Action to recover the value of a horse alleged to have been trampled to death by other horses in a car shipped from Decorah, Iowa, to Shawano, Wis. The complaint alleged that, by reason of the negligence of defendant in hooking from the inside three of the four doors of the car in which the horses were shipped, plaintiff was unable to get into the car and save the horse, and that the conductor, when he heard a noise in the car and notified plaintiff, failed to stop the train and give plaintiff opportunity to enter the car or protect the horses.

The answer alleged that the doors were fastened in the presence and to the satisfaction of the plaintiff, that the death of the horse was the result of the inherent nature of the animals, and denied that the plaintiff requested the conductor to stop the train in order that the horses might be inspected. Further answering, defendant set up the terms of the contract between the parties limiting liability.

The car in which the horses were shipped was divided into three compartments and had two doors on each side. Plaintiff was present when the animals were loaded. It was customary to hook one door on each side on the inside and fasten the others on the outside, and defendant's agent testified that this was done with the car in question.

At Milwaukee plaintiff and his agent looked into the windows of the car, but did not attempt to enter. The conductor testified that shortly before the train reached Sheboygan he told plaintiff that he had heard a commotion in the car; that plaintiff later told him that he had got into the car, looked at the horses, and found them to be all right. Plaintiff testified that he was told of the commotion in the vicinity of Manitowoc; that at the next stop he attempted to enter the car and could not because the doors were fastened on the inside; that at another stop he used a sledge hammer and got one door partly open, when the train started; that when he reached Shawano he found that one of the horses had fallen down and had been trampled to death; and that three of the doors were hooked on the inside.

Plaintiff testified that he told the conductor he could not get into the car, and that the conductor advised him to get a pinch bar at the next stop. This was denied by the conductor, the substance of his testimony being that he notified plaintiff of the commotion and later was told that the horses were all right; that he would have stopped the train if he had been asked to do so, but that no such request was made; and that he left the train at Manitowoc.

The contract of shipment provided in part:

“Section 5. When said animals are accompanied by the owner, or an attendant in his employ, the following further conditions shall apply, viz.: The shipper agrees to load, transship, and unload said animals at his own risk, the express company furnishing the necessary laborers to assist. The shipper shall take care of, feed and water said animals while being forwarded or transported, whether delayed in transit or otherwise, and the express company shall not be under any liability with reference thereto except the actual forwarding thereof. The shipper further undertakes to see that all doors and openings in the cars in which the animals are shipped are at all times so closed and fastened as to prevent the escape of any of said animals or injury thereto, and the express company shall not be liable on account of the escape of any of said animals or any injury thereto resulting from open doors or defective ventilation.”

The contract also provided:

“The shipper agrees that the express company shall not be liable for the conduct or acts of the animals to themselves, or to each other, such as biting, kicking, goring or smothering, nor for loss or damage resulting from the condition of the animals themselves, or which results from their nature or propensities, which risks are assumed by the shipper. The shipper hereby releases the express company from all liability for delay, injuries to or loss of said animals and paraphernalia, from any cause whatever, unless such delay, injury or loss shall be caused by the express company or by the negligence of its agents or employees.”

The jury found that defendant was guilty of a want of care in locking the doors in the manner in which they were locked when the horse was shipped; that such want of care was the proximate cause of the death of the horse; and that the damages suffered amounted to $275.

Eberlein & Larson, of Shawano, for appellant.

P. J. Winter, of Shawano, for respondent.

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

[1] The plaintiff and his agent were given free transportation for the express purpose of caring for the horses and relieving the carrier of some of the duties which would otherwise have rested upon it. It is true this did not relieve the company from the obligation to use reasonable care. But it was competent for the parties to make the stipulation that plaintiff would see that all doors and openings were so fastened and closed as to prevent the escape of the animals or injury to them, and it is clear from the evidence that he utterly disregarded this term of the contract.

He was an experienced shipper and had been engaged in shipping horses over the same route for about five years, and of course knew, or ought to have known, the proper and usual mode of fastening the doors in the cars used for shipment. He testified that he paid no attention to the manner in which the doors were locked; that it was none of his business; and that he did not look at the doors on the route until he was told that there was some noise in the car.

It is argued by plaintiff's counsel that when noise was heard in the car it was the duty of the conductor to hold the train until the doors could be opened and an examination made. Plaintiff testified that it was not uncommon to hear...