Louisville & N. R. R. Co. v. Brownlee

• Decision Date: 08 March 1879
• Citation: 77 Ky. 590
• Parties: Louisville & Nashville R. R. Co. v. Brownlee, & c.
• Court: Kentucky Court of Appeals

77 Ky. 590

Louisville & Nashville R. R. Co. v. Brownlee, & c.

Court of Appeals of Kentucky.

March 8, 1879

APPEAL FROM HART CIRCUIT COURT.

W. H CHELF FOR APPELLANT.

1. The law does not require a railroad company, making a special contract exempting it from loss by fire, to have depots that are proof against fire. (R. R. Co. v. Lockwood, 17 Wallace; 3 Bush, 194; Story on Bailments, sec. 570.)

2. There was no proof as to how the depot was set on fire, and therefore there was no proof that it was set on fire by the negligence of the railroad company or its agents. (22 N.Y 212.)

Was the building of a frame depot or station, per se, negligence? (See Kellogg v. Chicago & N.W. R. R Co., 26 Wis.; Michigan R. R. Co. v. Coleman, 28 Mich. 440.)

3. A common carrier may limit his general liability by contract. (2 Redfield on Railways, 89, 100, 177, 107; 3 Wallace, 107.)

4. A railroad company is bound to receive and carry freight in the order in which it is received at the particular station. (2 Redfield on Railways, 175, sec. 6; Ib. 85, 181; Wobert v. N. Y. & Erie R. R. Co., 12 N.Y. 245; 19 Barbour, 36; Scovill v. Griffith, 12 N.Y. 509.)

5. If the printed receipts were delivered to the appellees' driver, it was their duty to read them, etc., and therefore the court erred in not giving instruction No. 6. (Belger v. Dinsmore, 51 N.Y. 166; 51 Barbour, 69; Fible v Livingston, 64 Barbour; Adams Express Co. v. Guthrie, 9 Bush, 78.)

6. The court erred in refusing to instruct the jury to find special verdicts on motion of defendant. (Civil Code, secs. 326, 327.)

LYTTLETON COOKE ON SAME SIDE.

1. A railroad company can, by contracts fairly made, exempt itself from losses and damages to property in its possession, not the result of negligence. (2 Duv. 564; 7 Bush, 500; 9 Bush, 80.)

2. When, as in this case, a bill of lading contains a clause exempting from loss by fire, there is no liability for such loss, unless it was occasioned by the negligence of the carrier. (Railway Age, July 18, 1878; Hall v. R. R. Co., 13 Wall. 367; Long v. N. Y. C. R. R. Co., 50 N.Y. 76; Belger v. Dinsmore, 51 N.Y. 166; Steers v. Liverpool, & c., S. S. Co., 57 N.Y. 1; Maghee v. C. & A. R. R. Co., 45 N.Y. 514; Bostwick v. B. & O. R. R. Co., 45 N.Y. 712; Germania Fire Ins. Co. v. Memphis & Charleston R. R. Co., Ct. Appeals N. Y., January 15, 1878; Illinois Central R. R. Co. v. Frankenberg, 45 Ill. 88; Mulligan v. Ill. C. R. R. Co., 2 Am. Railway Cases, 322; McMillan v. Michigan S. R. R. Co., 16 Mich. 80; New Jersey S. Nav. Co. v. Merchants Bank, 6 How. 344; York Co. v. Central R. R. Co., 3 Wall. 112.)

3. An exemption from liability from losses arising from specified causes, when embodied in the bill of lading, has been frequently recognized as a part of the contract, though it did not distinctly appear to have been brought to the consignor's notice. (Davidson v. Graham, 2 Ohio (N. S.), 131; Parsons v. Monteith, 13 Barbour, 353; York Co. v. Central R. R. Co., 3 Wallace, 107; Dorr v. New Jersey Steam Nav. Co., 11 N.Y. 491; Moore v. Evans, 14 Barb. 524; Killman v. Express Co., 3 Kansas, 205; Whitesides v. Thurlkill, 20 Miss. 599.)

ISAAC T. WOODSON AND LESLIE & BOTTS FOR APPELLEES.

1. Appellant being a common carrier, and having suffered the loss of appellees' tobacco, was liable to appellees for the value of the tobacco, whether lost through negligence or not, unless a legal contract was entered into limiting appellant's extraordinary liability as an insurer with warranty of safety.

2. Such contract, if made, could not exempt appellant from the results of ordinary negligence on the part of appellant or its agents or employes, by which the shipper suffered loss.

3. The receipts relied upon are not such contracts, because they were never assented to by appellees at any time, nor understood by appellees, before the loss, and were not signed by either party, nor accepted as a contract in any way.

4. If the receipts had been agreed to by the parties, they can not avail appellant as a defense, for the reason that they purport to exempt appellant from all liability, without any exception, as to negligence or fraud; and this is against public policy and void under the law, and is not such a reasonable contract as the law will enforce. (1 Parsons on Con. 634, 635, 637, 638, 660, 707, 708, 712, 715; Angell on Carriers, 224, 226, 269, 386, 392, secs. 250, 259, 267, 462; Lockwood v. R. R. Co., 17 Wall. 377; Story on Bailments, 530, 534, 537, 593, 596, secs. 505, 509, 511, 571; 1 Chitty on Con. 95, 688, 689, 690, 691; Redfield on Carriers, 84, sec. 102; Adams Express Co. v. Nock, 2 Duv. 564; L. C. & L. R. R. Co. v. Hedger, 9 Bush, 645; Rhodes v. L. & N. R. R. Co., 9 Bush, 689; Ratcliffe v. Smith, 13 Bush, 172; 1 Redfield on Railways, 117; Redfield & Shearman on Negligence, 16, 395; 2 Redfield on Railways, p. 100, par. 11, p. 99, sec. 7, p. 88, sec. 11; Buckland v. Adams Express Co., 97 Mass. 124; Perry v. Thompson, 98 Mass. 249; 55 Maine, 462; Brown v. Eastern R. R. Co., 11 Cush. 97; Malone v. Boston & Worcester R. R. Co., 12 Gray, 388; 2 Greenleaf's Ev. 190, 191; Cole v. Goodwin, 19 Wallace, 257.)

5. Where special contracts are pleaded by defendant, the burden of proof is on the plaintiff to show negligence, and where receipts are delivered to shippers, the burden of proof is on them to show they did not understand and agree to the terms limiting the liability of the carrier. (Colton v. Cleveland & Pittsburgh R. R. Co., 67 Pa. 211; Lamb v. Camden & Amboy R. R. Co., 46 N.Y. 271; School District v. Boston, Hartford & Erie Co., 102 Mass. 552; Fietal v. Middleton R. R. Co., 109 Mass. 398; Van Schank v. Northeastern Transportation Co., 3 Biss. 394; Transportation Co. v. Downer, 11 Wall. 129.)

6. Whether appellant was guilty of negligence, in allowing combustible matter to accumulate in the depot, was a question for the jury. (Webb v. Rome, & c., 49 N.Y. 420; 39 L. J. C., p. 68; 18 Com. B. (N. S.) 584; L. J. C., p. 182; Michigan S. & R. R. Co. v. Heaton, 37 Ind. 448.)

OPINION

ELLIOTT JUDGE:

On the 11th of October, 1877, the appellees Brownlee and Wells brought this action for the recovery of the value of three hogsheads of tobacco, which they alleged had been consumed by fire while in possession of appellant's agents, and by their negligence, at Rowlett's Station, a depot or station on appellant's railroad.

On the 16th of June, 1877, the appellees by their teamster, a colored man, delivered to appellant's agent at its depot at Rowlett's Station, two hogsheads of tobacco. The appellant's agent filled up and delivered to the teamster, on the delivery of each hogshead of tobacco, a printed freight-bill, which, in addition to the acknowledgment of the receipt of the freight, contained a contract, limiting the common-law liability of appellant as a common carrier in several particulars, and among others contained the following provision: " That the said Louisville & Nashville Railroad Company shall not be liable for loss or damage on any article of property whatever, by fire or other casualty while in transit or while in depots, or landings at points of delivery, etc."

On the 18th of the same month and year the appellees, by the same teamster, delivered another hogshead of tobacco, and received a similar freight-bill or receipt for the same.

On the 19th of June, 1877, the warehouse in which this tobacco was stored at Rowlett's Station, was consumed by fire at near two o'clock in the morning, and appellee's tobacco was consumed with it.

According to the evidence there was a stove in the depot-building, but there had been no fire in it for several months.

The last trains that passed the depot before the fire were two that passed each other at that station at about eight o'clock and fifty minutes on the night of the 18th, some four or five hours before the fire. At between eleven o'clock and midnight the appellant's agent went to his boarding-house, some few hundred yards distant, and retired for the night, and at some minutes after one o'clock, A. M. of June the 19th, another train approached Rowlett's depot, and its passengers discovered the warehouse on fire.

The depot-buildings at Rowlett's Station were all built of wood, and covered or roofed with shingles, and a good many rags were scattered over the warehouse-floor at the time it caught fire. How, or precisely when, the warehouse took fire, appears to have been a matter of mere conjecture with the witnesses.

The colored man who delivered the tobacco proves that he received the freight-receipts, and delivered two of them to appellee Brownlee on the 16th of June, being the day of their date, and that he delivered the other one to Brownlee on the 18th of the month, the day of its date, and the appellee, Brownlee, proves that he received them at those dates.

By this teamster it is also proved that he, on the delivery of the hogsheads of tobacco on the 16th of June, informed the appellant's agent at the depot that the consignors wished them shipped so soon as it could be done to Louisville, as they wished them there by the 19th of the month at the farthest, and there is evidence conducing to prove that the appellant's agent promised to ship the tobacco by that time.

Appellant's agents, Havey and Rowlett, prove that at no time after they received the first two hogsheads of tobacco could they have shipped more than one of them before the burning of the warehouse. And they prove that the train on which appellant ships freight to Louisville passes the depot each morning at 10:35, and that at that time on the morning of the 18th of June the last hogshead of appellee's tobacco had not reached it, and could not have been shipped before the next morning, and before that time it was all burned up.

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