Missouri Pacific Railway Company v. Twiss
| Decision Date | 28 September 1892 |
| Citation | 53 N.W. 76,35 Neb. 267 |
| Parties | MISSOURI PACIFIC RAILWAY COMPANY v. EDWIN TWISS ET AL |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cass county. Tried below before CHAPMAN, J.
REVERSED AND REMANDED.
B. P Waggener, and A. N. Sullivan, for plaintiff in error:
Where several carriers unite to complete a line of transportation and receive goods for freight and give a through bill of lading, each carrier is the agent of all the others to accomplish the carriage and delivery of the goods, and is liable for any damage to them, on whatever part of the line the damage is received. (Texas & P. R. Co. v. Fort, 9 Am. & Eng. R. R. Cases, 392; Texas & P. R. Co. v Ferguson, 9 Id., 395.) Where receiving carrier has to pay damages for neglect of connecting line, it has a right of action against the carrier at fault. (C. & N. W. R. Co v. N. L. Packet Co., 70 Ill. 217.) And in the latter case the measure of damages is the amount recovered in the first action, where the carrier at fault had knowledge of its pendency.
Beeson & Root, contra.
It is alleged in the petition, in substance, that during the month of October, 1886, the defendants were common carriers of goods and merchandise from the plaintiff's depot in Louisville, Nebraska, to the depot of the C., B. & Q. R. R., in said village, about the distance of one mile; that on the 11th day of that month one J. P. Young shipped a piano from Weeping Water on the line of plaintiff's railroad to be carried to Louisville and there delivered to the C., B. & Q. R. R., to be transported on the latter road to Plattsmouth; that the defendants received freight in less than car load lots from the plaintiff at its depot in Louisville to be by them carried to and delivered to the C., B. & Q. R. R. at its depot there; that they were in fact an intermediate transportation company; that the plaintiff fully performed all the conditions of said contract on its part and delivered said piano in good condition to the defendants at Louisville, to be transported by them to the depot of the C., B. & Q. R. R. at that place to be forwarded to Plattsmouth; that the defendants so negligently performed their duty in transferring said piano as to permit the same to fall out of the vehicle on which it was being carried and it was thereby broken and damaged; that said Young thereupon brought suit against the plaintiff for said injuries and recovered a judgment against plaintiff for the sum of $ 150 and costs of suit taxed at $ 63.05; that said judgment was affirmed by the supreme court; that of all said suits and proceedings the defendants had due notice; that there is due from the defendants to the plaintiff the sum of $ 302.48, with interest from the 4th day of April, 1889.
The answer of the defendants consists of a number of specific denials, which need not be noticed.
On the trial of the cause the jury returned a verdict in favor of the plaintiff for the sum of $ 106.75, upon which judgment was rendered.
The testimony shows that the plaintiff, in connection with other common carriers, undertook to carry the piano beyond its own line and deliver the same to Young; in other words, several common carriers in effect formed a line for the transportation of the property beyond the limits of their respective lines and gave in this case a through bill of lading. In such case each carrier is the agent of the others to accomplish the carriage and delivery of the goods. (R. Co. v. Campbell, 36 Ohio St. 647; Beard v. St. L. & A. T. H. Ry. Co., 79 Iowa 527, 44 N.W. 803; A., T. & S. F. R. Co. v. Roach, 35 Kan. 740, 12 P. 93; K. C., St. J. & C. B. R. Co. v. Rodebaugh, 38 Id., 49; Tex. & P. R. Co. v. Fort, 9 Am. & Eng. R. R. Cases [Tex.], 392.)
That the piano was injured by the negligence of the defendants is not denied, and is clearly shown by the proof. In such case the party sustaining the injury may bring his action directly against the carrier committing the injury, or against the one that undertook to transport the goods. (A., T. & S. F. R. Co. v. Roach, supra; U. P. Ry. v. Marston, 30 Neb. 241.) As between the carriers, however, each one is liable for the result of its own negligence, and although the first carrier may have assumed the responsibility for the transportation of property beyond its own line, and damages may be recovered against it for a failure in that regard, yet the carrier causing the injury will be liable to it for such damages; in other words, the party guilty of the wrong is ultimately liable therefor. This doctrine, in another form, has frequently been applied where a covenantee has been evicted from possession by paramount title. (Smith v. Compton, 3 Barn. & Adol. 407; Williamson v. Williamson, 71 Me. 442; Bever v. North, 107 Ind. 544, 8 N.E. 576; St. Louis v. Bissell, 46 Mo. 157; Wendel v. North, 24 Wis. 223; Mason v. Kellogg, 38 Mich. 132; 2 Black on Judgments, sec. 567.)
In Bever v. North, supra, it was held that it was unnecessary to allege in the petition that the covenantor was required to defend. It was held that the covenantee need not appeal from the judgment of ouster, but might rely on his judgment. In this class of cases it is necessary to give notice to the covenantor in order that the judgment may be conclusive against him, and he should not only be notified of the action, and be requested to defend it, but if he desires should be allowed to do so to the utmost extent of the law. (Eaton v. Lyman, 26 Wis. 61.)
The above rules have been applied to cases where persons are responsible over to another either by express contract or operation of law. Thus, where damages were...
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