Merchants' Dispatch & Transportation Co. v. Cornforth

• Decision Date: 01 April 1877
• Citation: 3 Colo. 280
• Parties: MERCHANTS' DISPATCH AND TRANS. CO. v. CORNFORTH.
• Court: Colorado Supreme Court

3 Colo. 280

MERCHANTS' DISPATCH AND TRANS. CO. v. CORNFORTH.

Supreme Court of Colorado

April, 1877

Error to Probate Court of Arapahoe County.

ACTION in assumpsit against a common carrier to recover damages for not safely and securely delivering certain goods. The cause was tried to the court, and the plaintiff had judgment for $750. The facts are sufficiently stated in the opinion, the principal point presented in the argument being upon the right of a common carrier to limit his liability by contract or notice.

Messrs HUGHES & WELBORN, and Mr. SAM P. ROSE, for plaintiff in error.

Mr JOHN W. BLACKBURN, for defendant in error.

THATCHER C. J.

The Merchants' Dispatch and Transportation Company is a common carrier. Birks Cornforth, the defendant in error, who was the plaintiff in the court below, through their agents Raymond Bros., bought a car load of fruits, consisting of oranges, lemons, and bananas, of Underhill & Stewart, in New York city. The fruit was delivered to and shipped by the plaintiff in error, from New York to Denver, in the month of February, A. D. 1874. The evidence shows that Raymond Bros. entered into an oral contract with the company to ship the fruits in a refrigerator car through to Denver without change; that subsequently, and after the fruit was loaded in the car, a bill of lading, made out by the company in the name of Raymond Bros., was delivered to them, on which was printed this, among other conditions: 'The company will not hold itself liable at all, for injury to any article of freight during the course of transportation, occasioned by the weather.' On the bill of lading was written the words 'general release,' the import of which was explained in the evidence to be, that the common carrier was released from all loss or damage happening to the shipment under the bill of lading.

In our view, so far as the rights of the parties are concerned, it is immaterial whether the oral contract entered into between the company and Raymond Bros., or the stipulations in the bill of lading control. In either event the result will be the same, as becomes evident when we consider the nature and extent of a common carrier's liability, which is established by law, and within certain limits fixed by considerations of sound public policy, independent of contract. The employment of a common carrier is a public employment. The duty he owes as such is a public duty. The obligations the law casts upon him he cannot throw off at pleasure. To a limited extent only can he avoid responsibility. With a zealous eye the law keeps vigil over the public weal, and will not permit a carrier to enter into a contract which will exempt him from liability so far as his duty is of a public character. No special notice brought home to the customer can relieve, no contract can exonerate a common carrier from the consequences of his failure to exercise that degree of diligence to which he is bound by the nature of his employment. While by special agreement he may excuse himself for accidental losses, he will nevertheless continue responsible for all damages occasioned by negligence or misfeasance in him or his servants. 2 Kent's Com. 607. In the leading English case of Wyld v. Pickford, 8 Mees. & Welsb. 443, Baron PARKE, referring to the extent to which a carrier would be liable, after notice to the customer, says 'he still undertakes to carry for hire and is therefore bound to use ordinary care in the custody of goods, and their conveyance to and delivery at their place of destination, and in providing proper vehicles for their carriage. It is enough to prove an...