Norfolk Southern R. Co. v. Chatman

• Decision Date: 18 February 1915
• Docket Number: 1283.
• Citation: 222 F. 802
• Parties: NORFOLK SOUTHERN R. CO. v. CHATMAN.
• Court: U.S. Court of Appeals — Fourth Circuit

222 F. 802

NORFOLK SOUTHERN R. CO. v. CHATMAN.

No. 1283.

United States Court of Appeals, Fourth Circuit.

February 18, 1915

C. M Bain, of Norfolk, Va., and J. Kenyon Wilson, of Elizabeth City, N.C. (W. B. Rodman, of Norfolk, Va., on the brief), for plaintiff in error.

P. W McMullan and Charles Whedbee, both of Hertford, N.C., for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

The plaintiff in error will be hereinafter referred to as defendant, and defendant in error as plaintiff; such being the respective positions the parties occupied in the court below.

In the early part of December, 1911, plaintiff delivered to the Pennsylvania Railroad Company, at Jersey City, N.J., a car load of horses, to be transported over its lines and thence to Hertford, N.C., on the Norfolk Southern Railroad. About 5 o'clock in the afternoon, after the horses were loaded the man who had the horses loaded for the Pennsylvania Railroad Company delivered to the plaintiff a paper in the following language:

Pennsylvania Railroad Company.

Coupon to Uniform Live Stock Contract No. 872.

120 Jersey City Station, Dec. 1st, 1911.

W. C Chatman delivered to the Pennsylvania Railroad Company (subject to all the conditions of the uniform live stock contract, executed as of even date herewith and now in the possession of the said company, of which this coupon is part) live stock of the kind and number, and consigned and destined as follows:

17 Consigned W. C. Chatman.

Destination Pt. Norfolk, Va.

For Hertford, N.C.

One chartered car.

Number and description of stock containing (shipper's load and count) nine (9) horses and (1) stud horse and one (1) colt. Released to a valuation of $100.00 each, watered & fed at 12 noon P.M.

W. C. Chatman, Man in Charge.

Weight subject to correction . . .

Advances $ . . .

Car Nos. and Initials, Penna. Co. 581461.

Witness his hand and seal the day and year above written.

(Said shipper hereby states that the said animals tendered to the carrier for shipment are not affected with glanders.)

W. C. Chatman, Shipper. (Seal.)

Attest:

E. Butler,

Per M. Company's Agent.

After receiving the foregoing paper, the plaintiff got on the car with the horses as caretaker at the direction of the agent of the company, and came down to Cape Charles, Va., and thence across on a barge, still remaining in the car, to Norfolk, where the car was carried up to the stockyards.

The car was delivered to the defendant, the Norfolk Southern Railroad, and hauled to a point near Moyock in the state of North Carolina, when the car in which plaintiff and the horses were riding was derailed on account of the defective condition of the track, rotten ties, etc., and the plaintiff was injured and greatly damaged.

The defendant, for the purposes of this appeal, admits the derailment and the injury, and admits the plaintiff's right to recover judgment set out in the record, unless it can be shown that plaintiff was riding upon said train in violation of the law regulating interstate commerce, or that plaintiff was riding on the train without the authority of the defendant, and was a trespasser, or unless it can show that the plaintiff had assumed all risks of said transportation and released the defendant from any liability for neglect of any kind.

The defendant requested the court to submit the following issues to the jury:

(1) Was the plaintiff injured by the negligence of the defendant while lawfully riding on the defendant's train as a passenger, as alleged in the complaint?

(2) What damages, if any, is the plaintiff entitled to recover for said injury?

(3) Did the plaintiff assume the risks of injury in traveling upon defendant's train and release defendant therefrom?

The court declined to submit these issues, whereupon the plaintiff tendered the following issues, which were submitted:

(1) Was plaintiff injured by the negligence of the defendant as alleged in the complaint?

(2) What damage, if any, is plaintiff entitled to recover?

The jury answered both issues in favor of the plaintiff, and fixed the damages at $1,550, and judgment was entered accordingly, to which judgment defendant excepted, and the case comes here on writ of error.

It is insisted by counsel for defendant that it is not liable to plaintiff for damages, in that plaintiff's contract with the Pennsylvania Railroad is in violation of section 1 of what is known as the Act to Regulate Commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379 (Comp. St. 1913, Sec. 8563)), and therefore void, that the coupon or pass upon which plaintiff was transported was a gratuity, and that he was not in any sense a passenger for hire. It is further insisted that under these circumstances the company did not owe the plaintiff the duty to exercise the care necessary for his protection from personal injury that it would have, had he been a passenger for hire. Thus it will be seen that the principal question in this controversy is within a narrow compass.

Counsel for plaintiff insists that the transportation issued was for a valuable consideration; that it formed a material part of the contract with the Pennsylvania Railroad under which it agreed to ship the live stock in question. The memorandum in the right-hand corner of the caption, which is as follows, clearly indicates that it was the intention of the parties to the contract that the live stock should be watered and fed regularly by the plaintiff, who was designated as the 'man in charge': F.D. 2660.

Pennsylvania Railroad Company.

No. 872.

Uniform Live Stock Contract.

120 Jersey City Station, Dec. 1st, 19119

This agreement, made this the 1st day of December, 1911, by and between the Pennsylvania Railroad Company, hereinafter called carrier, and W. C. Chatman, hereinafter called shipper.

Witnesseth that the said shipper has delivered to the said carrier live stock of the kind and number, and consigned and destined by said shipper, as follows:

Consignee, Destination, etc. Number and Description of Stock and Count; Weight, Subject to Correction; Shipper's Load. W. C. Chatman, One chartered car containing 9 horses, 1 Port Norfolk, for stud, and one (1) colt. Released to a Hertford, N. C. c/o valuation of $100.00 each. Watered E. S.D. and fed by shipper at 12 noon, p.m. W. C. Chatman, man in charge. Advance charges $ . . . Car Nos. and initials Penna. No. 581461.

The contract also contained the following provision:

'That said shipper shall see that all doors and openings in said car or cars are at all times so closed and fastened as to prevent the escape therefrom of any of the said stock, and said carrier or any connecting carrier shall not be liable on account of the escape of any of the said stock from said car or cars.'

This provision placed upon the shipper the duty of keeping the openings closed, so as to prevent the escape from the car of any stock shipped, and also contained an exemption from any liability that might occur as a result of failure on the part of the shipper to take the necessary steps to prevent the happening of the things enumerated herein. This, read in connection with the caption, clearly shows that it was to the interest of the carrier from a pecuniary standpoint to have a caretaker in constant attendance from the time the car was loaded and started to its destination until its arrival and the shipment was delivered to the consignee. It would be unreasonable to say that this of itself did not constitute a consideration for the transportation issued to the caretaker.

It should also be borne in mind that section 4386, U.S. Complied Statutes 1901, p. 2995, prohibits the confinement of cattle sheep, or...