Fremont, Elkhorn & Missouri Valley Railroad Company v. Waters
| Decision Date | 16 February 1897 |
| Docket Number | 6999 |
| Citation | 70 N.W. 225,50 Neb. 592 |
| Parties | FREMONT, ELKHORN & MISSOURI VALLEY RAILROAD COMPANY v. JOHN WATERS |
| Court | Nebraska Supreme Court |
ERROR from the district court of Seward county. Tried below before WHEELER, J. Reversed.
REVERSED.
William B. Sterling, B. T. White, and D. C. McKillip, for plaintiff in error:
A common carrier of goods may by special contract confine its liability to its own line, though the goods are consigned to a place on a connecting line.
Norval Bros. and George W. Lowley, contra:
A carrier must furnish suitable vehicles for transportation, and if it furnishes unfit or unsafe vehicles it is not exempt from responsibility because the shipper knew of the defects.
Where the damage to goods was caused by negligence in furnishing an unsuitable car, the fact that damage actually occurred on another line is immaterial. (Hunt v. Nutt, 27 S.W. [Tex.], 1031; Alabama & V. R. Co. v. Searles, 16 So. [Miss.], 255.)
Instructions must be construed together, and if when considered as a whole they properly state the law, it is all that is required. (Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578; Gray v. Farmer, 19 Neb. 69; Bartling v. Behrends, 20 Neb. 211; City of Lincoln v. Smith, 28 Neb. 762; Barton v. McKay, 36 Neb. 633.)
A station agent of a railroad company can bind it by a verbal contract to furnish cars at a given time for the shipment of freight, unless the shipper knows that the agent has no such authority. Inability of a carrier to furnish cars contracted for, owing to unusually heavy traffic at the time, is no defense to an action for failure to furnish such cars. (Gulf, C. & S. F. R. Co. v. Hume, 27 S.W. [Tex.], 110; Gulf, C. & S. F. R. Co. v. Hodge, 30 S.W. [Tex.], 829.)
Defendant below is liable in case at bar. (Union P. R. Co. v. Marston, 30 Neb. 248; Missouri P. R. Co. v. Twiss, 35 Neb. 267.)
This was an action below in the district court for Seward county, wherein the defendant in error, John Waters, recovered judgment against the plaintiff in error, the Fremont, Elkhorn & Missouri Valley Railroad Company (hereafter called the "railroad company"), and from which the latter prosecutes proceedings in error to this court.
The cause of action alleged in the petition below is (1) that the defendant company neglected and refused, upon the plaintiff's demand, to furnish him, the said plaintiff, cars for the transportation of corn from Goehner station, in this state, to Chicago, between November 12 and 28, 1891, although notified in advance that he would require twelve cars for the shipment of his grain, amounting to 5,000 bushels and over, then on hand, which was, as the defendant well knew, worth in the Chicago market, if delivered during the month of November, eighty cents per bushel, but which was when subsequently delivered worth forty-five cents, or less, per bushel; (2) that on and after November 28, 1891, plaintiff delivered to the defendant company, in good condition, eight car loads of shelled corn, which the latter undertook to transport from the station above named to Chicago, but that through the negligence of the defendant, sixty bushels of said corn, of the value of eighty cents per bushel, was lost, and 5,014 bushels thereof was, on account of the bad condition of the cars furnished by the defendant, damaged in transit to the amount of twenty cents per bushel. The answer admits the receipt by the defendant company of eight cars of corn, which it undertook to transport from Goehner station to its terminal point at Missouri Valley, in the state of Iowa, where said corn was, by agreement with the plaintiff, delivered in as good condition as when received, to the Chicago & Northwestern Railroad Company, a connecting carrier, and was by the last named company in like condition delivered to the plaintiff's consignee in the city of Chicago. It is in the answer further alleged that there was during the period mentioned in the petition, an unusual and extraordinary demand for cars to be used in the shipment of corn to the Chicago market, and that the defendant company made a just and equitable distribution of cars among its patrons, including the plaintiff. Accompanying the foregoing statements of the answer is a denial which puts in issue the other allegations of the petition. The reply is a general denial.
The assignment of the petition in error to which especial prominence is given by the argument of counsel for the railroad company relates to the giving of the seventh instruction, as follows: "You are instructed, as a matter of law, that where two or more carriers by agreement unite to complete a line of transportation, the freight to be divided between them in definite proportions, and one of them receives goods for one freight for the whole line, and gives a through bill of lading, then each carrier is the agent of the other, and each is liable for damages done to the goods, or any unreasonable delay in transporting the same, on whatever part of the line the same may occur; and, in this case, you are further instructed that the bills of lading introduced in evidence recite that the cars of corn therein mentioned were received by the defendant corporation at Goehner to be carried to Missouri Valley, and thence to Chicago over the Chicago & Northwestern railway, and, if you believe from the evidence that the defendant corporation, at the time the corn was received, had an arrangement or agreement with the Chicago & Northwestern railway, by which they were each to unite and form a complete line of transportation between Goehner and Chicago, and each of the connecting companies to have an agreement or definite part of the freight, as between themselves, then the defendant would be liable for any damage or loss happening to the corn on any part of the entire route." This instruction is, it is contended, erroneous, for the reason that it assumes the existence of facts as to which there is an entire failure of proof; a criticism in our judgment altogether warranted by the record. There is in the bill of exceptions no evidence tending to prove that the defendant undertook to transport the corn beyond the terminus of its own line, or an agreement between the said defendant and the Chicago & Northwestern Company with respect to through traffic over their respective lines, while by the contract of shipment, as evidenced by the several bills of lading, it was expressly stipulated that the liability of the defendant company should cease upon the delivery at its depot at Missouri Valley of the property which is the subject of this controversy, in as good condition as when received, to the Chicago & Northwestern Company as a connecting carrier. We insert here so much of the contract mentioned as relates to the subject under discussion:
Description of Articles.
"Order of H. T. Jones.
Bulk Corn, ...
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