Kirkendall v. Union Pac. R. Co.

• Decision Date: 21 October 1912
• Docket Number: 2,353.
• Citation: 200 F. 197
• Parties: KIRKENDALL v. UNION PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

200 F. 197

KIRKENDALL v. UNION PAC. R. CO.

No. 2,353.

United States Court of Appeals, Eighth Circuit.

October 21, 1912

Kirkendall brought this action against the Union Pacific Railroad Company for the purpose of recovering damages for injuries which he received on the morning of February 26, 1903, while he was being transported, as he claims, as a passenger for hire on a train of the railroad company near the town of Sterling, Colo. At the trial of the action, counsel for the railroad company at the close of the evidence for the plaintiff moved the court for a directed verdict. The motion was granted, and Kirkendall has brought the case here assigning this ruling of the court as error.

The evidence introduced by Kirkendall in the court below established the following facts:

Kirkendall being in Denver, Colo., on the 25th day of February, 1903 was desirous of visiting relatives in the state of Ohio. He was a stockman himself, and had on that day sold some stock in Denver to Clay, Robinson & Co. He arranged with one Hall who was the agent of Clay, Robinson & Co. at Denver, to secure for him a chance to be transported from Denver, Colo., to Omaha, Neb., as a person in charge of stock.

As a result of this arrangement, Kirkendall was transported by the railroad company from Denver, Colo., to Omaha, Neb., in charge of two car loads of stock belonging to Lobman & Co. His right to be thus transported was evidenced by a contract, of which the following are the material parts, so far as this case is concerned:

'Union Pacific Railroad Co.

'Limited Liability Stock Contract.

'(Original.)

No. 63.

'Read this contract.

'Denver S. Yds. Station, Febry. 25, 1903.

'This agreement, made this 25th day of Febry., 1903, by and between Union Pacific Railroad Company, hereinafter called the carrier, and J. Lobman & Co., of Denver, hereinafter called the shipper:

'Witnesseth: That the said shipper has delivered to the said carrier 2 cars of cattle consigned to J. Lobman & Co. at So. Omaha, destination, via . . . , to be transported upon the conditions hereinafter set forth over the line of Union Pacific Railroad to . . . (insert only a station on the U.P.R.R.), and there delivered to the consignee, owner or order, or to such company or carrier (if the stock is to be forwarded beyond said station) whose line may be considered a part of the route to destination, it being understood that in and about the delivery of said stock to such connecting carrier Union Pacific Railroad Company acts only as agent for the consignee or owner, and that the liability of each carrier hereunder shall cease and determine upon delivery of said stock to the next connecting carrier, the consignee or owner.

'It is expressly agreed that this contract and the responsibility of all the carriers over whose line the shipment may pass is limited and controlled by the conditions herein contained, which are hereby agreed to by the shipper, and by him accepted for himself and his assigns as just and reasonable. It is further agreed and understood that the person delivering to this company the shipment or any part thereof described herein is authorized to sign this contract for and on behalf of the shipper, with full power in the premises.

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No. of Way Bill. Car.

No. Initial

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162 ............... 12690 O. S. L.

163 ............... 12672 O. S. L.

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'This document must be presented without alteration or erasure.

'Said shipper, for himself, the consignee or owner, agrees to pay or guarantee the freight thereon at the rate of $ . . . per standard car of 29 to 30 1/2 ft. in length (subject to established per cent. decrease or increase applicable to cars of less or greater length), or $ . . . per hundred pounds (subject to established minima for cars of varying lengths) as shown by limited liability tariffs governing, which rate is less than the regular tariff rate for the transportation of live stock at carrier's risk, and is given said shipper at his special request, in part consideration of his agreement to the limitation of the liability of the railroad company as a common carrier upon the terms and conditions herein set forth, which are accepted and agreed to by the shipper as just and reasonable; it being understood that each and every condition of this agreement shall inure to the benefit of each and every carrier over whose line said stock may pass under this contract.

'In consideration of the special reduced rate herein provided for the transportation of the live stock above described, it is hereby stipulated and agreed as follows:

Cows, not exceeding . . . $35 per head.

Hogs or calves, not exceeding . . . $10 per head.

'(Signed)

L. B. C. Kirkendall, Shipper.

'Union Pacific Railroad Company,

'By L. J. Burns, Station Agent.'

'Original Union Pacific Railroad Company Limited Liability

Live Stock Contract.

'Executed by L. J. Burns. At Denver U.S. Yds. . . . Station . . . 2/25 . . .1903 for . . . 2 . . . cars of . . . cattle . . . good for transportation of L. B. C. Kirkendall. (Billing Agent.) (Stamp here.)

'From Denver to So. Omaha, when accompanying the stock herein described and not otherwise.

'Release for Man or Men in Charge.

'In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract, without charge other than the sum stipulated therein, for the carriage of the live stock mentioned therein, the undersigned in charge do hereby voluntarily assume all risk of accident or damage to his (or their) person or property, and do hereby release and discharge the said carrier or carriers from every and all claim, liability and demand of every kind, nature and description, for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of the said carrier or carriers or any of its or their employes or otherwise.

'(Signed) L. B. C. Kirkendall.

(Signature of man or men in charge.)

'(Signed) L. J. Burns, Witness.

'The man or men who may be entitled to return transportation free or at a reduced rate under carrier's rules in effect, published and posted as required by law, at the time this contract was executed, will upon surrender of this contract to the carriers' agent at destination, within 30 days from date of executing the within contract, receive ticket or tickets for the return journey.'

In connection with the contract, Kirkendall helped load the cattle at Denver, Colo., and they were unloaded and fed at Grand Island, Neb. Kirkendall accompanied the cattle through to Omaha, Neb. At or near Sterling, Colo., on the morning of February 26, 1903, the caboose attached to the stock train in which Kirkendall was being carried was run into by an engine and cars from behind, and as a result thereof he was personally injured.

John Hipp, of Denver, Colo. (Ralph Talbot, of Denver, Colo., on the brief), for plaintiff in error.

C. C. Dorsey, of Denver, Colo. (William V. Hodges, of Denver, Colo., and John N. Baldwin, on the brief), for defendant in error.

Before CARLAND, Circuit Judge, and W. H. MUNGER, District Judge.

CARLAND Circuit Judge (after stating the facts as above).

By the express terms of the contract it was agreed and understood that Kirkendall was authorized to sign the same for and on behalf of the shipper, with full power in the premises. Under the terms of the contract and the evidence introduced at the trial, Kirkendall was the employe and agent of Lobman & Co. It appears clearly from the contract that the railroad company agreed to transport the two cars of cattle at less than the regular tariff rate in consideration of Lobman & Co. agreeing to the limitation of the liability of the company as a common carrier, and further agreeing that they would load, unload, and reload the cattle at their own expense and risk, that they would feed, water and tend the same at their own expense and risk, and that they would perform the other innumerable duties with reference to the transportation thereof prescribed by the contract to be performed by the shipper.

It now becomes pertinent to inquire: How was Lobman & Co. to perform the provisions of the contract on their part to be performed? Manifestly, they must furnish a man or men to care for the stock and to perform the other duties required by the contract to be performed by them, and the contract provided for just such services. The contract did not provide that the owner of the cattle should personally accompany and take care of the same, and this would in a great majority of cases be impossible; so that the fact that Kirkendall had no interest in the cattle as owner cannot affect the question to be decided. The railroad company, having placed the burden of caring for the stock upon Lobman & Co., agreed that it would transport Kirkendall when accompanying the stock in question from Denver to Omaha without charge other than the sum stipulated for the carriage of the live stock. The transaction, stated in a few words, was this: The railroad company, in consideration of the payment by Lobman & Co. of the limited liability tariff, the agreement by them to the limitation of the liability of the railroad company as a common carrier, and the assumption by them of the care of the stock, agreed to transport the two cars of stock, and Kirkendall, the man in charge, from Denver to Omaha. It is argued that the shipment of the cattle under the limited liability contract was purely voluntary on the part of Lobman & Co.-- that they could have paid the regular tariff, and thereby held...