Chi., St. P., M. & O. R. Co. v. Schuldt
| Citation | 92 N.W. 162,66 Neb. 43 |
| Court | Supreme Court of Nebraska |
| Decision Date | 22 October 1902 |
| Parties | CHICAGO, ST. P., M. & O. R. CO. v. SCHULDT ET AL. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Where a shipper agrees to personally accompany and care for the watering of live stock transported by a railway company, and is given free transportation for that purpose, and is supplied with proper facilities, he cannot complain of an injury arising from lack of such care in the matter of watering, arising out of his own fault.
2. The agreement that the shipper shall accompany the stock and be responsible for its care is, when proper facilities are supplied, not a limitation of the carrier's liability, as contemplated by section 4, art. 11, of the state constitution.
3. The care of live stock while being transported is a mere incident to its transportation, and transportation agencies have the right to contract against their assumption of liability that accrues to them merely as bailees, and in common with other bailees, and not strictly as common carriers.
Commissioners' opinion. Department No. 1. Error to district court, Cuming county; Evans, Judge.
Action by Charles Schuldt and others against the Chicago, St. Paul, Minneapolis & Omaha Railroad Company. Judgment for plaintiffs, and defendant brings error. Reversed.Benjamin T. White, James B. Sheehan, and J. B. Barnes, for plaintiff in error.
Ira Thomas and W. W. Sinclair, for defendants in error.
On July 1, 1897, the plaintiffs shipped 58 head of hogs over the defendant's railway from Bancroft, Neb., to South Omaha, Neb. The hogs were loaded on the car about 9 o'clock in the evening, and, when delivered to the consignee at the place of destination upon the following morning, 22 were dead, and the rest were in a very bad condition, on account of being overheated. The plaintiffs charge that the injury was the result of the failure of the defendant to pour water over and upon the hogs at different stations along the route, and in this particular it was alleged that it was necessary to the safe and proper transportation of said hogs that they be so watered. The answer, among other things, alleged that, at the time the defendant received said car of hogs from the plaintiffs, it entered into a contract with the shippers which contained a clause as follows: “The said shipper agrees to load, unload, and reload all of said stock at his own expense and risk, and to feed, water, and attend to the same at his own risk and expense, while it is in the stock yards of said company awaiting shipment, and while on the cars or at feeding or at transfer points, or where the same may be unloaded for any purpose;” that for the purpose of carrying out the contract, and enabling the plaintiffs to do so, the defendant furnished the plaintiffs free transportation for one person to ride on its train from Bancroft to South Omaha, to care for, look after, and water said stock according to the terms of the contract; that plaintiffs accepted said free transportation, and put a person as their agent on said train, who took charge of said car load of hogs, and that said agent went through to the point of destination to perform plaintiffs' part of said contract; that said agent so in charge of said stock never at any time informed the defendant's servants, agents, or employés in charge of said train that said hogs needed or required water, or any other care whatsoever; that said agent never at any time requested defendant to water said hogs, or permit the said agent to do so; that defendant had no knowledge of the condition of said hogs, but relied upon the agent of plaintiffs to look after them and request the defendant to water them when necessary; that defendant's agents, servants, and employés were at all times ready and willing to water said hogs whenever notified or requested to do so; that, if said hogs were killed or injured for want of water or care, it was through no fault or negligence on the part of the defendant, but that the same occurred wholly and solely on account of the negligence of plaintiffs' agent in not looking after, caring for, and ascertaining the condition of said hogs, and informing the defendant of the necessity of watering them. A demurrer to the portions of the answer above referred to was sustained. The trial resulted in a verdict and judgment for the plaintiffs, to review which the defendant has brought error to this court.
The real question presented by the record is whether a shipper of live stock, who agrees to look after and care for stock during its transportation, and who, for the purpose of carrying out the contract, receives free transportation, can recover for injuries to the stock, arising from his own neglect to...
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