Kirst v. Milwaukee, Lake Shore & Western Railway Co.

• Decision Date: 25 March 1879
• Citation: 1 N.W. 89,46 Wis. 489
• Parties: KIRST and another v. THE MILWAUKEE, LAKE SHORE & WESTERN RAILWAY COMPANY
• Court: Wisconsin Supreme Court

1 N.W. 89

46 Wis. 489

KIRST and another v. THE MILWAUKEE, LAKE SHORE & WESTERN RAILWAY COMPANY

Supreme Court of Wisconsin

March 25, 1879

APPEAL from the County Court of Milwaukee County.

Plaintiffs had a verdict and judgment; and defendant appealed.

Judgment affirmed.

For the appellant, there was a brief by Cottrill, Cary & Hanson, and oral argument by Mr. Cottrill.

For the respondent, there was a brief by Samuel Rosendale, and oral argument by E. Mariner.

OPINION

The case is thus stated by ORSAMUS COLE, J.

The complaint avers a failure on the part of the defendant company to deliver to the consignee three carboys of acid, and alleges that such carboys, through the negligence and default of the agents of the defendant, were broken and discharged. The plaintiffs make a part of their complaint the receipt given by the company on the delivery of the goods in question for transportation, in which receipt it is expressly stipulated that the company shall not be responsible for the breakage of any carboys of acid, unless it can be shown that such damage or loss occurred through the negligence or default of the agents of the company.

The cause was last tried by the county court, a jury being waived. It appeared on the trial that the plaintiffs delivered in good condition to the defendant, at its depot in Milwaukee, 28 carboys of acid, to be transported to Appleton. One of the plaintiffs testified that his firm received a letter from the consignees stating that only 25 carboys were received from the carrier at the place of consignment. He says that he then went to the general freight agent, at his office in Milwaukee, to make inquiries about the missing three. He was informed by the agents of the defendant that the three missing carboys had been broken by the Chicago & Northwestern Railway Company in Milwaukee, which company did the switching for the defendant in that city; and that they would examine into the matter and report. After waiting two or three weeks and hearing nothing from the company, the same plaintiff again called upon the agent, and was informed that the matter had been inquired into, and it was found that the three carboys were broken by the Chicago & Northwestern Company while switching, and that, as the latter company refused to pay for the loss, the agent of the defendant refused to pay. The value of the goods was shown, and also the contract for transportation. At the close of the plaintiff's case, the defendant moved for a nonsuit mainly on the ground that, in addition to proving the loss of the goods, the onus was upon the plaintiffs, under the stipulation in the receipt, of showing that the breakage occurred through the negligence or default of the agents of the defendant. The learned county court, however, held that as the defendant had failed or neglected to give a full and fair account as to how the loss occurred, when applied to by the plaintiffs, this was sufficient proof from which negligence on the part of the agents and servants of the company might be inferred. The correctness of this view is the sole question we have to consider. On the part of the defendant it is claimed, that, under the stipulation in the receipt limiting the liability of the carrier, the defendant was simply a...