Maslin v. Baltimore & O. R. R. Co.
| Decision Date | 16 November 1878 |
| Citation | 14 W.Va. 180 |
| Parties | MASLIN v. Baltimore & O. R. R. CO. |
| Court | West Virginia Supreme Court |
1. A railroad company is a common carrier of cattle, but as such is not responsible for losses occasioned by the cattle dying or being injured by heat, unless the loss or damage has been occasioned by some negligence or misfeasance of the company or of its servants.
2. A common carrier for hire by special contract, based on a valuable consideration, may exempt itself from loss, or damage, resulting from inevitable accident, though such accident was not the result of the act of God, or of the public enemy, provided the common carrier, or its servants in no manner contributed to such accident; but it can not exempt itself from loss or damage, which has in any degree been caused by the negligence or misfeasance of itself or its servants.
3. A railroad company, which charges for the transportation of cattle, but permits the shipper to travel on a free pass upon the cars to take care of the cattle, is a common carrier for hire, both as to passenger and cattle.
4. A common carrier does not become a private carrier, by a special contract, whereby it is relieved from a portion of its responsibilities as a common carrier.
5. A shipper of cattle in a declaration in which there are no counts against the defendant except against him as a carrier or bailee, of cattle, can not recover for losses resulting from the misrepresentation of the defendant's agent whereby the plaintiff was induced to ship the cattle on a slow train of the defendant, instead of on a fast train.
Supersedeas to a judgment of the circuit court of Mineral county, rendered on the 18th day of May, 1876, in an action therein pending, in which Thomas Maslin was plaintiff and the Baltimore and Ohio Railroad Company was defendant allowed on the petition of the defendant.
Hon. John Blair Hoge, judge of the third judicial circuit, rendered the judgment complained of.
GREEN, PRESIDENT, furnishes the following statement of the case:
In February, 1870, Thomas Maslin brought an action of trespass on the case against the Baltimore and Ohio Railroad Co., in the circuit court of Mineral county. The declaration contained three counts. The first set forth, that the defendant was a common carrier of goods, cattle, & c., from New Creek in Mineral county, West Virginia, to Baltimore, Maryland; and while such common carrier, the plaintiff on August 16, 1869, caused to be delivered to it at New Creek station, in said county, and it then received, 36 head of fat cattle ready for market, in good condition and of the value of $3,000.00, to be safely and securely carried and conveyed to Baltimore and there delivered in good condition to H. Seymour & Co. for certain reasonable reward. Yet the defendant did not safely carry the cattle, nor deliver them, but through its carelessness, negligence and misconduct two of them died on the cars, and the rest were seriously injured and damaged.
The second count contains similar allegations, but does not allege, that the defendant was a common carrier, and specifies the defendant's carelessness and misconduct to have been the refusal of the defendant's agent, when requested so to do, to drop the cars, on which the cattle were, at Martinsburg, or to throw water on them there or at Ellicott's Mills, though they were suffering greatly from heat and two of them had fallen down in the cars, and though the defendant by its agent could easily have complied with the request.
The third count is against the defendant as bailee of the cattle. It does not specify and carelessness or misconduct of the defendant, but simply states, that it did not take due and proper care of the cattle, as such bailee.
Afterwards by leave of the court two additional counts were added to this declaration. The first of which was like the first count, except that it alleges, that the defendant required the plaintiff's agent to execute and deliver a paper, whereby the defendant restricted its general liability, as common carrier of said cattle and insisted therein, that they were to be conveyed at the owner's risk in certain respects; and that with these restrictions it became bound and undertook to convey said cattle to Baltimore, using such ordinary care, diligence, precaution, and prudence, as a man would use in care of his own cattle, which it did not do, but by its wilful neglect and misconduct and its refusal to permit water to be thrown on the cattle, when requested by plaintiff's agent, though they were suffering and about to perish from heat, whereby two of the cattle died on the cars, and the others were seriously injured.
The last count was similar to the preceding, except that it set out the special contract at length. This special contract sets out, that in consideration of a reduced rate of charges the plaintiff assumed certain specified risks, that is all and every risk of injuries, which the animals, or any of them, might receive in consequence of any of them being wild, vicious, unruly, weak, escaping, maiming or killing themselves, or each other, or from delays, or in consequence of heat, suffocation, or the ill effects of being crowded on the cars, or on account of being injured by the burning of hay or straw or other material used by the owner for feeding them or otherwise and for any damage occasioned thereby; and also all risk of any loss sustained by reason of any delay or for other causes or things in, or incident to, or from, or in loading or unloading, the cattle. And by said special contract the plaintiff agreed to load and unload the cattle at his own risk, the defendant to furnish the necessary power to move the cars under the plaintiff's direction, who was to examine for himself and see, that they were of sufficient strength, of the right kind and in good repair. And it was further agreed, that under no circumstances should the defendant be responsible for injury to, or loss of, any single animal beyond $200.00, though its value might be more. And the plaintiff or his agent was to have a free passage on the cars to take care and charge of the cattle, but at his own risk of personal injury from any cause. And the plaintiff released the defendant from all responsibility for losses, before referred to, or from any other, that might happen from mistakes or unavoidable accidents in the transportation of the cattle.
The defendant demurred to this declaration including these two additional counts, and to each of the counts; and the court overruled the demurrer, and the defendant pleaded not guilty; and issue was joined. The jury found a verdict for the plaintiff for $342.50; and thereupon on May 18, 1876, the court rendered judgment therefor pursuant to the verdict. The defendant filed a bill of exceptions, which was made a part of the record, which states, that evidence was introduced tending to prove, that the defendant was a common carrier, and that the special contract set forth in the declaration was executed; that the transportation charges were $124.00, that at the maximum rate of eight cents per ton per mile the transportation charges would have been $225.00; that the cattle were shipped on the afternoon of August 16, 1869, and reached Baltimore the next afternoon; that the weather was excessively hot for the season, that the cattle were placed by the plaintiff in two cars and accompanied by his agent, that en route two cattle died and others were injured from the effects of heat; that (as attempted to be proven by the plaintiff, but objected to by the defendant,) prior to the time the cattle were shipped the plaintiff requested the defendant's agent at New Creek to furnish cars to ship the cattle on a regular stock train, which was to have left, and did leave, that place in the forenoon of August 16, 1869, and that the agent was unable to furnish them for that train, and for that reason they were shipped in the afternoon train on what is called the slow stock train consisting of twenty-one cars of dead freight and these two cars of cattle; that before the cattle were shipped the defendant's agent represented to the plaintiff that the cattle would be as safely and advantageously carried on this slow stock train as on the regular cattle train, which representation was not true; and there was also evidence tending to show, that the cattle died and were destroyed by the negligence of the defendant's servants. After the evidence was introduced tending to prove these facts, and before the jury retired, at the instance of the plaintiff the court gave these instructions: " No. 1. The court instructs the jury, that the defendant in this cause could not lawfully stipulate by special contract or otherwise for exemption from responsibility for the negligence of itself or its servants.
No. 2. The court instructs the jury, that although they may believe from the evidence, that the paper writing dated August 16, 1869, entitled ‘ stock contract’ was fairly executed, yet if they believe from the evidence, that the said cattle in their transportation by the defendant from New Creek to Baltimore sustained loss and injury, and that said loss and injury resulted from the negligence of the defendant or its servants, then they must find for the plaintiff."
To the giving of which the defendant objected, and asked the court to give to the jury the six instructions as follows:
" No. 1. The court instructs the jury, that if they believe from the evidence, that the plaintiff put his cattle upon the slow stock train of the defendant to be carried upon it to Baltimore, and paid the hire therefor there, then the plaintiff cannot under the pleadings in this cause recover any damages because of any failure of the company to furnish cars for the shipment of said cattle at...
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