Coup v. Wabash, St. L. & P.R. Co.
| Decision Date | 28 January 1885 |
| Citation | 56 Mich. 111,22 N.W. 215 |
| Parties | COUP v. WABASH, ST. L. & P. RY. CO. |
| Court | Michigan Supreme Court |
Error to Wayne.
Griffin Dickinson, Thurber & Hosmer and Henry M Cheever, for plaintiff.
Alfred Russell, for defendant and appellant.
Plaintiff who is a circus proprietor, sued defendant as a carrier for injuries to cars and equipments, and to persons and animals caused by a collision of two trains made up of his circus cars while in transit through Illinois. The court below held defendant to the common-law liability of a common carrier and held there was no avoiding liability by reason of a special contract under which the transportation was directed. The principal questions raised on the trial arose out of discussions concerning the nature of defendant's employment, and questions of damage. Some other points also appeared. In the view which we take of the case, the former becomes more important, and will be first considered. Plaintiff had a large circus property, including horses, wild animals, and various paraphernalia, with tents and appliances for exhibition. He owned special cars, fitted up for the carriage of performers and property, in which the whole concern was moved from place to place for exhibition.
The defendant company has an organized connection, under the same name, with railway running between Detroit and St. Louis, through Indiana and Illinois. On the twenty-fifth of July, 1882, a written contract was made at St. Louis by defendant's proper agent, with plaintiff, to the following effect: Defendant was to furnish men and motive power to transport the circus by train of one or more divisions, consisting of twelve flat, six stock, one elephant, one baggage, and three passenger coaches, being in all 23 cars, from Cairo to Detroit, with privilege of stopping for exhibition at three places named, fixing the time of starting from each place of exhibition, leaving Cairo, August 19th; Delphi, August 21st; Columbia City, August 22d; exhibiting at Detroit, August 23d; and then to be carried over to the Great Western Transfer Line boats. Plaintiff was to furnish his own cars, and two from another company at Cairo, in good condition and running order. It was agreed that "for the use of the said machinery, motive power, and men, and the above enumerated privileges, plaintiff should pay $400 for the run to Delphi, $175 to Columbia City, and $225 to Detroit, each sum to be paid before leaving each point of departure." It was further expressly stipulated that the agreement was not made with defendant as a carrier, but merely "as a hirer of said machinery, motive power, and right of way, and the men to move and work the same; that same to be operated under the management, direction, orders, and control of said party of the second part [plaintiff] or his agent, as in his possession, and by means of said employes as his agents, but to run according to the rules, regulations, and time-tables of the said party of the first part." The contract further provided that defendant should not be responsible for damage by want of care in the running of the cars, or otherwise, and for stipulated damages in case of any liability. It also provided for transporting free on its passenger trains two advertising cars and advertising material.
The plaintiff's cars were made up in two trains at Cairo, and divided to suit instructions. The testimony tended to prove that two cars were added to the forward train by order of plaintiff's agent, but in the view we take the question who did it is not important. The forward train was for some cause, on which there was room for argument, brought to a stand-still and run into by the other train, and considerable damage done by the collision. Defendant insisted that plaintiff made out no case for recovery, and that the contract exempted it. Plaintiff claimed, and the court below held, the exemption incompetent. Unless this undertaking was one entered into by ...
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