Johnstone v. Richmond & D.R. Co.

• Decision Date: 04 April 1893
• Citation: 17 S.E. 512,39 S.C. 55
• Parties: JOHNSTONE et al. v. RICHMOND & D. R. CO.
• Court: South Carolina Supreme Court

17 S.E. 512

39 S.C. 55

JOHNSTONE et al. v. RICHMOND & D. R. CO.

Supreme Court of South Carolina

April 4, 1893

Appeal from common pleas circuit court of Newberry county; L. B Fraser, Judge.

Action by Alan Johnstone, John C. Wilson, and John C. Myers, as partners under the name of Alan Johnstone & Co., against the Richmond & Danville Railroad Company, to recover for stock killed in transit. From a judgment for plaintiffs, defendant appeals. Reversed.

J. F J. Caldwell, for appellant.

Johnstone & Cromer, for respondents.

McIVER C.J.

This was an action to recover damages for the loss of four hogs shipped by the plaintiffs over the road of defendant company to be delivered at Newberry, S.C. The case was originally instituted in the trial justice court, carried thence by appeal to the circuit court, and from thence brought to this court by this appeal. The undisputed facts are that on or about the 25th of November, 1890, J. C. Myers, one of the members of the plaintiffs' firm, shipped a lot of 233 hogs at Lenoirs, in the state of Tennessee, to be transported by the East Tennessee, Virginia & Georgia Railway, and its connecting lines,--the defendant being such connecting line,--to Newberry, S. C.; that the cars containing such hogs were delivered to the defendant at Paint Rock, N. C., and upon arriving at Asheville, N. C., a station on defendant's line, three of the hogs were found to be dead, and when the train reached Alston, S. C., another hog was found to be dead; so that only 229 hogs were delivered at Newberry,--the point of destination. It seems that these hogs were shipped under a special contract signed by the said Myers, a copy of which is set out in the case, which contained, among other things, the following stipulations That the hogs were "to be shipped upon the following contract, terms, and conditions, which are admitted by me to be just and reasonable:" That in consideration of the transportation of said live stock "at the reduced rate of ninety-eight dollars per car load from Lenoirs to Newberry, S. C., and furnishing free transportation to the owner or his agent on the train with said stock. *** And I further agree that the said East Tennessee, Virginia and Georgia Railway, and all connecting transportation companies, shall not be, and shall not be held, liable for any loss, injury, damages, or depreciation which the animals, or either of them, suffer in consequence of either of them being weak, or escaping, or injuring themselves or each other, or in consequence of overloading, heat, suffocation, fright, viciousness, or of being injured by fire, or the burning of any material, while in the possession of said railway, or any connecting transportation company. And I expressly release said East Tennessee, Virginia and Georgia Railway, and connecting transportation companies, from all other damages incidental to the railroad or water transportation of said stock, which shall not be established by positive evidence to have been caused by the negligence of some officer or agent of said East Tennessee, Virginia and Georgia Railway or connecting transportation companies And I further agree that in the event said East Tennessee, Virginia and Georgia Railway, or any of said connecting transportation companies, shall become or be held liable, for any reason or any account, for any injury to, or of the death of, any of said stock, the valuations of injury or loss shall in no event exceed the following: For stallions or jacks, $200.00 each; for houses or mules, $100.00 each; for cattle, $30.00 each; and for other stock, $5.00 each." When the plaintiffs offered testimony in the trial justice court tending to show that the hogs lost were worth, at the point of delivery, about $25 each, the testimony was objected to, and the objection was overruled. This ruling was subsequently affirmed by the circuit judge. We need not go into any statement of the testimony introduced in the trial justice court as to the cause of the death of the hogs, as that was a question of fact which we cannot consider in a case like this. The verdict being in favor of the plaintiffs for the full amount claimed, $99,--that being the amount shown, by the testimony objected to, as above stated, to be the actual value of the hogs at the point of delivery,--the defendant appealed to the circuit court, and his honor, Judge Fraser, affirmed the judgment of the trial justice court, holding that, while the commonlaw liability of a common carrier may be limited by special contract, yet the carrier cannot exempt himself from liability for loss occasioned by his own negligence, nor can he, by such contract, shift the burden of proof upon the shipper, either to show that the loss was due to negligence, or that it was occasioned by some one of the causes which might be legally excepted by special contract. He also added, as his conclusions from the testimony, that it "does not show in any manner at all, satisfactory to my mind, what was the real cause of the death of these hogs. There has been a failure to show that there was no negligence on the part of the defendant." From this judgment defendant appeals upon the several grounds set out in the record, which need not be repeated here, as all except those which raise mere questions of fact, which we cannot consider in a law case, like this, present, practically, but two questions: (1) Whether the circuit judge erred in holding that a carrier cannot, by special contract, limit his liability so as to exempt him from responsibility for losses occasioned by his negligence. (2) Whether he erred in holding that a carrier cannot, by special contract, limit the amount of damages which may be recovered against him for injuries sustained by reason of his negligence.

It seems to us that the first question is conclusively answered adversely to the appellant, by a recent decision of this court in the case of Wallingford v. Railroad Co., 26 S.C. 258, 2 S.E. Rep. 19. There the rule, to which we adhere, is laid down in these words: "At common law there is no exemption to the liability of common carriers for goods, etc., intrusted to them, except for an act of God or of the king's enemies. They are regarded as insurers as to all else. In England, however, and in several states of this Union, including our own, [South Carolina,] the common-law doctrine was modified to the extent of allowing a common carrier to exempt himself from this broad liability, by special contract, as to certain specified causes of injury. See, in this state, Swindler v. Hilliard, 2 Rich. Law, 286; Baker v. Brinson, 9 Rich. Law, 202; and other cases which need not be cited. It was, however, held in all of the cases that he could not shield himself from the consequences of...