Norfolk & W. Ry. Co v. Reeves

• Decision Date: 29 June 1899
• Citation: 97 Va. 284,33 S.E. 606
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. REEVES et al.

33 S.E. 606

97 Va. 284

NORFOLK & W. RY. CO.

v.REEVES et al.

Supreme Court of Appeals of Virginia.

June 29, 1899.

PLEADING — EVIDENCE — HEARSAY—VALUE— CARRIERS OF LIVE STOCK—PRESUMPTION OF NEGLIGENCE—DELIVERY—LIMITATION OF LIABILITY—BILLS OF LADING—NOTICE OF CLAIMS.

1. Evidence as to damages which are not claimed in the declaration is inadmissible.

2. Testimony of plaintiff that he was informed by his commission merchants that they sold his cattle at a certain price is hearsay.

3. Where a witness bases his knowledge of market values on newspaper quotations and statements made by merchants, his testimony as to values is inadmissible.

4. Where cattle are shipped on a railroad, and by the contract of shipment are to be loaded, unloaded, and cared for by the shipper, a charge that an injury to the stock while being shipped raises a presumption of negligence against the carrier should be qualified by excepting injuries resulting from the negligence of the shipper or the vice of the animal.

5. Where no notice of shipment for a particular market was alleged, a charge that a common carrier does not guaranty delivery of live stock on any particular market day is correct, and an amendment to the charge, excepting cases where such notice was given, is erroneous.

6. Under Code, § 1295, providing that a common carrier shall insure safe carriage to the destination of all freight shipped on its line, unless by contract it limits its liability to injuries happening on its own line, a bill of lading signed by the shipper which limits the liability of the carrier to damage arising on its own line is a valid contract.

7. Where a bill of lading does not state the location of a claim agent's office, a stipulation that notice of a claim must be given within five days is unreasonable and void.

Error to circuit court, Smyth county.

Action by Reeves & McNeil against the Norfolk & Western Railway Company. There was judgment for plaintiffs, and defendant brings error. Reversed.

Boiling & Kegley and W. A. Glasgow, Jr., for plaintiff in error.

Fudge & Bell and B. F. Buchanan, for defendants in error.

CARDWELL, J. Defendants in error, trading as Reeves & McNeil, brought their action in the circuit court of Smyth county against the Norfolk & Western Railway Company upon five several and separate contracts or bills of lading for the carriage of live stock from Marion, Va. Five of the car loads of stock were consigned to the shippers themselves. There were two car loads of sheep and one of cattle billed for Philadelphia, Pa,; one of cattle billed for Lancaster, Pa.; and another of sheep to Norfolk, Va. The sheep and cattle so shipped were loaded on the cars at Marion late in the evening of December 24, 1897, but were delayed there about 20 hours owing to a wreck on the road of the defendant company at Peek Creek Mountain. The other cattle were loaded and left Marion at 3:38 p. m. January 4, 1898, billed to A. W. McClure, Media, Pa.

For each car load of sheep or cattle the defendant company issued its bill of lading signed by its agent at Marion, and by T. E. Reeves for Reeves & McNeil, the shippers, wherein, after setting out the rate of freight to be paid by the shippers, and that it is the lower published tariff rate based upon the expressed condition that the carrier assumes liability on the said live stock to the extent only of the following agreed valuation, upon which valuation is based the rate for the transportation of the said animals, etc., the following provisions, among others not necessary to be specially mentioned, appear:

"That the said shipper is at his own sole risk and expense to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, and neither said carrier or any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same.

"That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employes, or its connecting carriers or their employes, or otherwise, the said shipper agrees to accept as full compensation for all loss or damage sustained thereby the amount actually expended by said shipper in the purchase of food and water for the said stock while so detained. That no damage which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the shipper, unless a claim for such damage shall be in writing, verified by the affidavit of the said shipper or his agent, and delivered to the freight claim agent of the said carrier at his office within five days from the time said stock is removed from said car or cars, and that, if any loss or damage occur upon the line of a connecting carrier, then such carrier shall not be liable unless a claim shall be made in like manner, and delivered in like time, to some proper officer or agent of the carrier on whose line the loss or injury occurs. That in case of any loss or damage whereby any legal liability or responsibility shall or may be incurred by the terms of this contract that company alone shall be held responsible therefor in whose actual custody tbe live stock may be at the time of the happening of such loss or damage.

"And I do hereby acknowledge that I had the option of shipping the above live stock at a higher rate of freight, according to the official tariff, classifications, and rules of the said carrier and connecting carriers, and thereby receiving the security of the liability of the said carrier and connecting railroad and transportation companies, as common carriers of the said live stock upon their respective roads and lines, but have voluntarily decided to ship same, under this contract, at the reduced rate of freight above first mentioned."

By another clause of each of the contracts, an agent of the owners and shippers was to ride free, and to be with the train and to take care and charge of the cattle and sheep.

The grounds upon which the plaintiffs claim damages of the defendant company to the amount of $1,700, as alleged in their declaration, as to four of the car loads, are that, by reason of unnecessary delay in the transportation of the cattle and sheep by the defendant company for the space of 24 hours, plaintiffs were prevented from selling the same on the Monday's market, in the cities of Philadelphia and Norfolk, following the date of the delivery of the stock to the defendant company for transportation, which said market day in said cities is and was well known; and that the sheep and cattle shipped to Philadelphia and Norfolk were shipped by plaintiffs for sale on the Monday's market next after their shipment. And as to the two remaining car loads of cattle billed to Lancaster and Media, Pa., respectively, it is alleged that the defendant company did not deliver the cattle to plaintiffs at Lancaster, or their agent at Mcdia, within a reasonable time and in a safe condition, because of the carelessness, negligence, and default of the defendant company in the premises.

At the trial of the cause the jury rendered a verdict for the plaintiff, assessing damages to the amount of $70650, upon which judgment was entered; whereupon the defendant company obtained from this court a writ of error and supersedeas.

The first assignment of error is that the circuit court erred in overruling the objection of the defendant company to a question asked T. E. Reeves of the firm of Reeves & McNeil, plaintiffs, when on examination as a witness in his own behalf, and in permitting the witness to answer the question; the question being, "What extra expense, by failing to reach the market, were you put to?" To which witness answered: "Commissions, $1 per head, my railroad fare to Lancaster from Philadelphia, and two or three days' extra time."

The damages it was sought to prove by the question and answer were not claimed in the declaration; therefore it was error to admit this evidence.

The next error assigned is that the circuit court erred i overruling the motion of the defendant to exclude the answer of the witness Reeves to the question propounded by the plaintiffs: "What did you get for the cattle which you sold in Philadelphia?" To which he answered: "Holmes & Clark sold the cattle and sheep for us, and I got $515 for the cattle. This information I got from Holmes & Clark, my...