Morse v. Canadian Pac. Ry. Co.

• Citation: 53 A. 874,97 Me. 77
• Parties: MORSE v. CANADIAN PAC. RY. CO.
• Decision Date: 09 December 1902
• Court: Supreme Judicial Court of Maine (US)

53 A. 874

97 Me. 77

MORSE

v. CANADIAN PAC. RY. CO.

Supreme Judicial Court of Maine.

Dec. 9, 1902.

(Official.)

Report from supreme judicial court, Penobscot county.

Action by Charles W. Morse against the Canadian Pacific Railway Company. Case reported, and plaintiff nonsuit.

Case to recover the value of two horses belonging to the plaintiff, which died while being transported over the defendant's railway between Montreal and Brownville Junction.

It was alleged in the writ and admitted by the defendant that the horses when they left Montreal were apparently in good order and condition, and no question was raised that they died. The plaintiff averred that the injury and death to his horses were caused solely by the gross carelessness of the defendant company.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, POWERS, PEABODY, and SPEAR, JJ.

P. H. Gillin and T. B. Towle, for plaintiff.

C. F. Woodard, for defendant.

EMERY, J. The Wabash Railroad Company received from the plaintiff's agent at Chicago 20 horses for transportation over its own and connecting railroads to Bangor. In the course of that transportation these horses were received alive and apparently in good condition at Montreal by the Canadian Pacific Railway Company, the defendant, but when the car containing them was delivered by the defendant company to the Bangor & Aroostook Railroad Company at Brownville Junction two of the horses were found dead in the car. This action is to recover the value of these two horses, and the plaintiff, in his declaration, has counted upon the common-law liability of the defendant company as a common carrier.

The defendant, however, pleaded and put in evidence a special written contract made between the plaintiff and the Wabash Railroad Company, for itself and connecting railroads, to govern the transportation of the 20 horses. In this written contract, among other stipulations, were these: (1) That the plaintiff should load and unload the horses, and take care of them while being transported, at his own risk and expense; (2) that he should feed, water, and take care of his horses at his own expense and risk, and to assume all risk of injury and damage that the horses might do to themselves or each other, or which might arise from delay of trains; (3) that he would not hold the Wabash Company or any connecting railroad company responsible for any loss, damage, or injury which might happen to the horses or be sustained by them while being loaded,...