Chi., R. I. & P. R. Co. v. Witty

• Decision Date: 30 June 1891
• Citation: Chi., R. I. & P. R. Co. v. Witty, 32 Neb. 275, 49 N.W. 183 (Neb. 1891)
• Parties: CHICAGO, R. I. & P. R. CO. v. WITTY.
• Court: Nebraska Supreme Court

32 Neb. 275

49 N.W. 183

CHICAGO, R. I. & P. R. CO.

v.WITTY.

Supreme Court of Nebraska.

June 30, 1891.

Syllabus by the Court.

A common carrier of live-stock cannot by contract with a shipper relieve itself, either in whole or in part, from liability for injury or loss resulting from its own negligence.

Error to district court, Jefferson county; MORRIS, Judge.M. A. Low, W. F. Evans, Baker & Freeman, and Hazlett & Bates, for plaintiff in error.

Letton & Hinshaw, for defendant in error.

NORVAL, J.

The defendant in error shipped a stallion over the railway of the plaintiff in error from Henry, Ill., to Jansen, Neb. The horse died shortly after reaching the place of destination by reason of injuries received in transportation, as is claimed, caused by defendant's negligence. The action is for the recovery of the value of the animal. There was a trial by jury, and a verdict and judgment for plaintiff for $400. Defendant prosecuted error.

The petition alleges, in substance, that on the 31st day of October, 1888, at Henry, Ill., the plaintiff delivered to the defendant, as common carrier for hire, a certain stallion of the value of $1,800, to be transported over its railway to Jansen, in this state; that the defendant undertook to do so for the stipulated sum of $30, which was then and there paid by plaintiff to the defendant; that the defendant did not safely convey and deliver said stallion, as it had undertaken to do, but, on the contrary, conducted itself so carelessly and negligently in and about conveying and transporting the same that said stallion was severely hurt, bruised, and injured, to such an extent that it died from the effects of said injuries on the same day it arrived at Jansen; and that said injuries were caused by the gross negligence of the defendant in and about the operation of its train, of which the car containing said horse formed a part. The defendant's answer admits the receipt and transportation of the animal, as stated in the petition, denies all allegations of negligence, and sets up that the stallion was received by the defendant for transportation under a contract in writing, made by it with the plaintiff, whereby, in consideration of a reduction of the freight on said animal from $54 to $27, it was agreed the liability of the defendant for damages to said animal should not exceed $100; that the regular charges for the transportation of a stallion over the defendant's road from Henry to Jansen was $54 when the animal was of greater value than $100, except in cases where, by agreement with the owner, the liability of the company for damages to such animal was limited to $100, and the owner assumed the risks, as provided in the written contract in this case. The answer also denies that the horse was injured in transportation, or that it died from the effects of such injuries, and alleges that the immediate cause of his death was pneumonia. The value of the animal was put in issue by the answer. The plaintiff in his reply alleges that $30 was the only sum of money demanded of plaintiff, or mentioned to him, as being the regular rate of freight for the carriage of said horse, and that plaintiff was not informed, and had no knowledge, that said sum was not the full regular rate of charge for such carriage. The second paragraph of the reply is as follows: “Plaintiff avers no consideration was ever received by him for the signing of a certain paper or papers presented to him by the agent of defendant at Henry for signature; denies that any reduction of freight rates was ever made to him; denies that he ever entered into any contract or agreement to release the defendant from liability as a common carrier for the safe delivery of said stallion; and avers that, if the papers he signed contained any such pretended contract or agreement, plaintiff had no knowledge of the same, and was ignorant that any such release, contract, or agreement was ever signed by him. Plaintiff further says that any such release and agreement, if any there be, as alleged, is without consideration, and null and void, and is against public policy, and contrary to law, and inoperative to release said defendant.” The proof shows beyond controversy that the horse was sound and in good condition when he was placed in the car at Henry, and that when the car reached Jansen the horse was severely bruised and injured, from the effects of which he died shortly after being unloaded. The evidence tends to show that the bruises and injuries were caused by the careless, negligent, and violent manner in which the defendant handled the car in which the horse was being transported. Indeed, it is not contended by the plaintiff in error that the evidence on the question of its negligence in operating and handling its cars was not ample to sustain the verdict of the jury.

The sole ground on which we are asked to reverse the case is the alleged error of the court in its refusal to give to the jury the following instruction, asked by the plaintiff in error: “(3) The court instructs the jury that, under the law and evidence in this case, plaintiff cannot, in any event, recover any sum exceeding one hundred dollars, with seven per cent. interest thereon from the 3d day of November, 1888.” Whether this request should have been given depends upon whether the written contract for the transportation of the horse, pleaded in the answer and introduced on the trial, is valid and binding. The following is a copy of the contract referred to:

“Form 8. Chicago, Rock Island & Pacific Railway Company. Live-Stock Contract.

READ THIS CONTRACT.

Live-stock in quantities less than a full car-load will be charged for on basis of estimated weights, as per current classification. Live-stock in car-loads, or less, will not be taken unless this contract, under which the company assumes no responsibility for loss, damage, or delay to the stock, is executed by the station-agent and shipper. Agents are not allowed to receive and ship such live-stock until a proper contract or release is signed by the owner or shipper thereof. Two or three cars of stock will entitle the owner or his agent to pass on the train with the stock, to take care of it; four to seven cars, inclusive, belonging to one owner, two men in charge; and eight cars or more, three men in charge,--which is the maximum number that will be passed by one owner. One car of horses or mules will entitle the owner or driver to pass on the train with the stock, to take care of it, but will not entitle him to return pass. Parties so passed must accompany the stock. The agent at the station where the stock is loaded will give no passes, but the name or names of the persons who are actually entitled to pass free with the stock must be entered on the back of the contract, which, when certified to by the agent, is the authority for the conductor to pass them. Agents will permit only the names of the owners or bona fide employes who accompany the stock to be entered on the back of the contract, without regard to passes allowed by number of cars. Different kinds of live-stock must not be loaded in the same car. Agents of this company are not authorized to agree to forward live-stock to be delivered at any specified time.

No. of Way-Bill S1. No. of Car, 4,314 C., K. & N. Henry Station.

DUPLICATE.

This contract, made and entered into this 31st day of Oct., A. D. 1888, by and between W. H. Witty, of ______________, Shipper's residence. DP the Chicago, Rock Island & Pacific Railway Company, y, witnesseth: that, for and in consideration of rate named [tariff dollars per car] and privileges above enumerated, the said W. H. Witty agrees to ship one stallion, cars of ______, from Henry to Jansen, Neb., and said railway company agrees to receive and haul the same. Which stock is to be loaded and unloaded, watered and fed, by the said W. H. Witty, or his agents. And, in consideration of free transportation for ______ persons, hereby given by said railway company, such persons to accompany the stock, it is agreed that the cars containing the stock of said W. H. Witty are in the sole charge of such person or his agents, for the purpose of attention and protection to the stock while in transit, and the company assumes no responsibility for safety to stock in charge of the shipper or his agents, whether from theft, heat, jumping from car, injury in loading or unloading, injury or damage which stock may do to...