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

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

49 N.W. 183

32 Neb. 275

CHICAGO, R. I. & P. R. CO.
v.
W. H. WITTY

Supreme Court of Nebraska

June 30, 1891

ERROR to the district court for Jefferson county. Tried below before MORRIS, J.

AFFIRMED.

M. A. Low, and W. F. Evans, for plaintiff in error, cited, contending that a limitation of liability was valid, even where the carrier was negligent: 1 Lawson, Cont. of Carriers, ch. 5; Hart v. R. Co., 2 McCreary [U.S.] 333; Hart v. R. Co. 112 U.S. 338; St. L., I. M. & S. R. Co. v. Weakly, 8 S.W. [Ark.] 134; Harvey v. R. Co., 74 Mo. 538; Graves v. R. Co., 137 Mass. 33; Squire v. R. Co., 98 Mass. 239; L. & N. R. Co. v. Sherrod, 35 Am. & Eng. R. Cases, 611; Durgin v. Am. Exp. Co., 20 A. [N. H.] 328.

Letton & Hinshaw, contra, cited, contending that the limitation was void: Railroad Co. v. Lockwood, 17 Wall. [U.S.] 357; Liverpool Steam Co. v. Ins. Co., 129 U.S. 397; McFadden v. M. P. R. Co., 92 Mo. 343 [1 Am. St. Rep., 721]; [M. P. R. Co. v. Fagan, 13 Am. St. Rep. [Tex.] 776, and notes]; Cream City R. Co. v. C., M. & St. P. R. Co., 63 Wis. 93, and cases; Hutchinson, Carriers, 226, and cases.

OPINION

[32 Neb. 276] NORVAL, J.

The defendant in error shipped a stallion over the railway of the plaintiff in error from Henry, Illinois, to Jansen, Nebraska. 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 prosecutes error.

The petition alleges, in substance, that on the 31st day of October, 1888, at Henry, Illinois, the plaintiff delivered to the defendant, as common carrier for hire, a certain [32 Neb. 277] 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; 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 [49 N.W. 184] from $ 54 to $ 27, it was agreed the liability of the defendant for damages to said animal should not exceed $ 100, and that the regular charges for the transportation of a stallion over 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 such [32 Neb. 278] 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 contracts 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...