Coupland v. Housatonic R. Co.

• Decision Date: 29 February 1892
• Citation: 61 Conn. 531,23 A. 870
• Parties: COUPLAND v. HOUSATONIC R. CO.
• Court: Connecticut Supreme Court

23 A. 870

61 Conn. 531

COUPLAND

v. HOUSATONIC R. CO.

Supreme Court of Errors of Connecticut.

Feb. 29, 1892.

Appeal from superior court. New Haven county.

Action by Charles Coupland against the Housatonic Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

S. E. Baldwiu, for appellant.

J. W. Ailing, for appellee.

SEYMOUR, J. It appears from the record in this case that the answer to the complaint contained two defenses, to the second of which a demurrer was entered. The demurrer was sustained upon grounds so entirely peculiar to the particular case, and of no general applicability, that we need only say for the information of the parties that in our judgment the second defense contained nothing material not already sufficiently averred in the first defense; and that the defendant suffered nothing in consequence of the action of the court sustaining the demurrer. The complaint did not allege that the injury was occasioned by chafing or collision; on the contrary, it alleged another cause, which precluded such claim. Again, the first defense had already set out the bill of lading containing the agreement stated in the second defense, and had alleged that it was made with Parley A. Russell, who described himself as agent for the shipper. The record conclusively shows that the defendant was deprived of no advantage by the failure of the first defense to state more particularly than it did that the bill of lading was a contract between the plaintiff and the defendant. The court treated it as such, and in the charge to the jury tells them that it seems to be an undisputed fact that Mr. Russell signed it as the plaintiff's agent. The defendant has no just ground to complain because the demurrer was sustained. At the trial the defendant introduced the following bill of lading which was set forth in its answers: "Housatonic Railroad. Great Barrington Station. April 25, 1891. In consideration of the Housatonic Railroad Co., and also in consideration of any corporation whose roads connecting therewith, receiving and carrying, viz., one horse, value $100; one colt, consigned to Rundle & White. Danbury, Conn., freight prepaid, the owner and shipper hereby agree that none of said corporations shall be liable for damage or loss of or to all or any part of said freight by reasons of breaking, chafing, weather, fire, or water, except where collision or running from the track, resulting from negligence of the corporation's agents, shall cause the same; and the shipper and owner hereby promise to pay the freight, and to claim no deduction therefrom by reason of any damage or loss. L. F. Jones, Station Agent. Signed in duplicates: Pauley A. Russell, Agent for shipper and owner."

The defendant requested the court to charge the jury that, inasmuch as the declaration charges the defendant merely as a common carrier, but the proof is that the mare and colt were shipped under a special contract, the proof does not support the declaration, and the verdict must be for the defendant. This the court declined to do, but charged that, in view of the complaint, and of all the pleadings, and of the evidence offered by the plaintiff, the suit was to be regarded as an action to recover of the defendant upon the ground for its negligence. The refusal of the court to charge as requested by the defendant was fully justified. If the animals had been shipped under a special contract, which undertook to completely exonerate the defendant from the consequences of its own negligence, the request would have been proper. But in this case there is no attempt on the part of the defendant to limit its common-law liability except by reason of breaking, chafing, weather, fire, or water, where collision or running from the track, resulting from negligence of the corporation's agents, does not cause the same.

It is argued by the defendant that the injuries which the mare sustained and which occasioned her death, namely, the breaking of a leg, and other severe injuries, occasioned by her being thrown down by a sudden side movement of the car, are properly described by the words "breaking" and "chafing" in the bill of lading, and are therefore injuries against which the defendant undertook to exempt itself from responsibility, even for its own negligence, unless such negligence caused collision or running from the track, which, in this case, it did not. Such argument is unsound. None of the words, "breaking, chafing, weather, fire, or water," used in the bill of lading to describe the occasion of the damage against which the defendant limits its liability, are apt or appropriate to describe the injuries complained of, nor injuries to live freight at all. It is evident the bill of lading used on this occasion was one ordinarily used for goods, wares, and merchandise, other than living animals, or, at any rate, was only appropriate for such property. In Camp v. Steam-Boat Co., 43 Conn. 333, twelve barrels of sugar and one tierce of rice were shipped under a bill of lading, which contracted to transport and deliver them in the order and condition in which received, the acts of God, public enemies, perils of sea and river navigation, collision, fire, and all other perils, dangers, and accidents not resulting from the negligence of the company or its agents, excepted." On the passage through Hell Gate the steam-boat struck on a rock and sprung a leak, whereby the goods were damaged. The plaintiff sued the steamboat company as common carriers, and himself introduced the bill of lading in evidence. The defendants claimed and requested the court to instruct the jury that the contract between the parties, upon which they were alone liable, if at all, was expressed in the bill of lading, and that it was the duty of the plaintiff to set out in his declaration the contract and the exceptions as to liability as contained therein; that there was a variance between the declaration and the proof, and that the plaintiff, therefore, could not recover; and that the goods were received by the defendant not as common carriers, but under the contract contained in the bill of lading. The court declined so to instruct the jury, but instructed them that the plaintiff might recover, unless the defendants showed that the accident occurred through no want of reasonable care or prudence on their part. Upon a motion for a new trial for error in refusing to charge as requested, this court held that there was a fatal variance between the allegations of the declaration and the proof. It held it to be well settled that common carriers may stipulate for a less degree of responsibility than the common law imposes, and that, while the English courts hold that they may stipulate for entire exemption, even for their own negligence, the courts in this country differ only as to the extent to which public policy will allow the stringency of the ancient rule to he relaxed, and generally hold that they will reserve the right to pass upon the reasonableness of the particular contract made, and will not allow the carrier to exempt himself by special contract from the consequences of his own negligence or that of his agent. That case, however, differs from the case at bar. To be sure, the bill of lading in the latter undertakes to exempt the defendant from responsibility for all damage to freight by reason of breaking, chafing, weather, fire, or water, even though occasioned by its negligence, other than negligent collision or running off the track; and in respect to freight to which that contract applied we should hold that the contract for exemption from consequences of its own negligence could not be sustained. But there is no contract that the defendant shall be exempted from damages occasioned by its own negligence in failing to provide a suitable car, or for so transporting a mare that she is thrown down so as to break her leg, and receive other severe injuries, of which she dies. In respect to every injury except those caused by breaking, chafing, weather, fire, or water, or by collision or running off the track through the negligence of its agents, the defendant is subject to all the responsibilities of a common carrier. No attempt is made to limit such responsibilities. The bill of lading contains no contract respecting them.

The common-law rule which made carriers practically insurers of property while being carried by them has, however, from the very necessity of the case, been in a measure relaxed in the carriage of livestock. As suggested in Edw. Bailm. § 680, the carrier can store away goods, so as to secure their safety; but a carrier of animals by a mode of conveyance opposed to their habits and instincts has no such means of securing absolute safety. They may die of fright; they may, notwithstanding every precaution, destroy themselves in attempting to break away from the fastenings by which they are secured; or they may kill each other by crowding, plunging, or goring; the motion of the cars, their frequent concussions, the scream of the engines may often create a kind of frenzy in the swaying mass of cattle; and the carrier is not held liable for injuries or losses arising from the irrepressible instincts of this living freight which he could not prevent by the exercise of reasonable care. While he is not an insurer against injuries arising from the nature and propensities of the live-stock carried by him, yet his liability is not limited to a careful conveyance of the cars containing them. He must provide, in advance, suitable means to secure their conveyance; and he must use those means with all reasonable diligence and forethought in the varying circumstances arising in the business. To apply these principles to the case before us: The plaintiff sued the defendant as a common carrier of live-stock. The defendant, as one defense, set up the bill of lading, and claimed that the mare and colt were shipped under its special provisions, which varied its...