Lawson v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 22 September 1885
• Citation: 64 Wis. 447,24 N.W. 618
• Court: Wisconsin Supreme Court
• Parties: LAWSON, ADM'X, ETC., v. CHICAGO, ST. P., M. & O. RY. CO.

64 Wis. 447

24 N.W. 618

LAWSON, ADM'X, ETC.,

v.CHICAGO, ST. P., M. & O. RY. CO.¹

Supreme Court of Wisconsin.

Filed September 22, 1885.

Appeal from circuit court, St. Croix county.L. P. Wetherby and R. H. Start, for respondent, Phila Lawson, Adm'x, etc.

Clapp & Macartney, S. L. Perrin, and John D. Howe, for appellant, Chicago, St. P., M. & O. Ry. Co.

ORTON, J.

One W. E. Fay, in the night-time of the twelfth of December, 1883, shipped on one of the freight cars of the appellant company, at New Richmond, 12 horses to be carried to Phipps Station, a distance of about 100 miles, and employed the deceased to ride in said car to care for said horses on the route. About 25 miles from New Richmond, at a station called Clayton, the train in which said car was placed met and collided with another train standing there at the time, and thereby the car in which the horses and the deceased were being carried was crushed in and broken, and the deceased so injured as to cause his death.

It is admitted in the answer that the collision which caused such death resulted from the fault of the servants of the company, and the jury found that the collision which caused it was occasioned by their gross negligence. It is alleged in the complaint that the said Fay entered into a contract with the company that said horses should be so transported for the usual charges, which were paid, and that it was agreed that John J. Lawson, the deceased, the employe of said Fay, should accompany said horses, and ride with them on said car, to look after their interests. It is substantially alleged in the answer that the company was accustomed to make with shippers of live-stock, at that time, written contracts by which the shipper assumed certain risks, and which contained other provisions favorable to the company, one of which was that the persons who were allowed to ride in the car with the stock should so ride at their own risk of personal injury from any cause whatever, and that no passes should be given to such persons, but that they should sign their names on the back of the contract; and no such contract was made in this instance with the said Fay, but that said Fay applied to the station agent at New Richmond for a car in which to ship horses, which car was provided for his use.

It is further alleged in the answer that, after the accident occurred and said Lawson seriously injured therein, the said Fay and the station agent at New Richmond made out and executed one of said written contracts, and signed the name of said Lawson on the back, without authority from the company, and that said Fay was not the owner of all of said stock, and that two other persons rode in said car with the deceased, and that the three conspired to obtain in this way a free passage. There was evidence that said Fay and the agent at New Richmond made the said verbal contract of shipment, which provided that one person should ride in the same car with the horses, to take care of them, and that said Lawson, the deceased, went into said car for such purpose, with the knowledge and consent of the conductor of said train, before the car was placed next to the tender in said train, and that Fay had no knowledge of any such customary written contracts in such cases.

There was no evidence whatever of any conspiracy between said Lawson and the two other persons in said car with him to obtain a clandestine and free ride on said train. Whether said Fay was the owner of all of the 12 horses shipped was quite immaterial to the deceased, rightfully within said car, and was very properly omitted from the special findings and verdict of the jury. There was evidence tending to show that it was customary for the defendant company to carry at least one person free in a car-load of horses of such number, to take care of them, and that such person was useful in keeping horses so shipped quiet and from injury when the cars were in motion. This statement of the case is sufficient to make intelligible the positions assumed by the learned counsel of the appellant.

First. That there was no contract between Fay and the station agent that the deceased should accompany the horses in the car, so as to create the relation of carrier and passenger between him and the company. The learned counsel, in assuming that Lawson was a common passenger, or a passenger in the ordinary sense, if he had any right to ride on that train anywhere, and in citing authorities applicable to such a view of his relation to the company, scarcely meets the real question here presented. Lawson was, in a sense, a passenger; but he was more than a passenger. He held responsible relations to the stock in his care, and connected with it by the alleged contract of shipment. His place on that train was in the car with the horses, and to care for them, or it was nowhere; and he had no right to be carried on that train in any other place. He was to be carried free and without charge, because he was to be carried in that way. He had no right to be carried in the caboose, or in any other car or place on that train, according to the agreement and understanding of the agent, Gault, and Fay. It was quite immaterial that the deceased was not at the time named as the person to ride in the car with the horses. By the agreement, Fay was authorized to place one person in the car with the horses to take care of them, and the agent did not see fit to have such person named, as he might have done, and Fay carried out the agreement by placing the deceased in the car for such purpose, with the knowledge and assent of the conductor of the train. It is too plain for argument that the deceased was rightfully in the car under the agreement, and was no intruder or trespasser, and the company owed him the duty to carry him there safely by the exercise of reasonable care. The custom of the company in other cases of carrying horses, and with them in the same car some person to take care of them on the route, repels the idea that this case was extraordinary or exceptional. The authorities cited by the learned counsel of the appellant related to common passengers who voluntarily placed themselves where they had no right to be under the contract for their carriage. This is a different case. The deceased occupied the very place where he should have been, and was connected with the live-stock carried so intimately that they could not properly be separated without possible danger to it from the want of his personal care and attention. There are special circumstances attending such a case not present in cases of common passenger carriage. In the case cited by counsel for appellant of Eaton v. Railroad Co., 57 N. Y. 382, it was held that the conductor of a coal train who invited a person to ride thereon free did not bind the company, or create the relation of carrier and passenger between such person and the company. In the opinion in that case, however, cases are cited approvingly of persons riding on gravel trains “under certain circumstances,” who might recover for injuries occasioned by collision.

Second. Had the station agent authority to agree with Fay verbally to carry his horses on a freight car, and one person with them to take care of them? It is insisted by appellant's counsel that the station agent had no authority to make such verbal agreement, and had authority only to make such customary written stock contract as set out in the answer. There is very little, if any, substantial difference between the agreement made and the one which it is admitted the agent had authority to make. Both provide for the carrying of one person, with such number of horses on the same car, without charge. The signing of such person's name on the back of the written contract could have no effect except to bind such person to the stipulation that he was to take the “risk of personal injury from any and every cause whatever.” Such a stipulation would not have exonerated the company from liability in case of gross negligence. Black v. Goodrich Transp. Co., 55 Wis. 322; S. C. 13 N. W. Rep. 244, and cases there cited. The difference between the contract made and the one that the counsel of the appellant now contends ought to have been made is merely formal, and the authority of the agent to make substantially the contract that he did make is virtually conceded. That class of cases relied upon by the appellant's counsel to show that the agent of a carrier company cannot bind the company by contract in violation of his instructions, or outside of the legitimate scope of the particular business with which he is intrusted, is inapplicable to this case. The law is well settled that if the agent had authority to make such a contract, and in making it he violates his special instructions as to the mere form of it, of which the shipper has no notice, the company is bound. If the agent has the general authority to make certain contracts, but is restricted by private instructions not known to the other contracting party, as to the manner of making them, the principal is bound. This rule is based on the public policy of preventing frauds upon innocent persons, and the encouragement of confidence in dealings with agents. Story, Ag. §§ 73, 126, 133.

Much stress in the argument is laid upon the want of authority in the conductor to permit or allow the deceased to ride in the car with the horses. This question is not of much importance when it is clear that, if the testimony of Fay and Marvin is to be believed,--and the jury had the right to believe it,--the deceased was rightfully in that car by contract and understanding with the agent, and, by other testimony, such a contract was sanctioned by previous custom. There was evidence that the deceased was allowed and permitted by the conductor to so ride, or, at least, that he knew of it and assented to it. It having been customary for a person to so ride in company with horses carried upon said road, the conductor's...