Ohio & Mississippi Railway Co. v. Tabor
| Decision Date | 24 September 1895 |
| Citation | 98 Ky. 503 |
| Parties | Ohio & Mississippi Railway Co. v. Tabor. |
| Court | Kentucky Court of Appeals |
APPEAL FROM HARDIN CIRCUIT COURT.
W. H. MARRIOTT AND CHAS. H. GIBSON FOR APPELLANT.
WALKER D. HINES ON SAME SIDE IN PETITION FOR REHEARING.
JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.
This appeal is prosecuted from a judgment of the Hardin Circuit Court rendered in the suit of the appellee against the appellant.
It appears that the appellee contracted with the Newport News and Mississippi Valley Railroad Company, to transport one car load, of cattle from Cecilia, Ky., to Cincinnati, Ohio, which company had no line of road to Cincinnati, but under authority from the appellants to contract for the carrying of the cattle over appellees' lines; at least such is the contention of appellee.
It further appears that after the cattle were placed in appellant's charge and while being transported to Cincinnati one of them was killed and others injured in the sum of two hundred dollars, for which said suit was instituted in the Hardin Circuit Court, and a trial resulted in a verdict in plaintiff's favor for one hundred and thirty-five dollars.
Appellant's motion in arrest of judgment and also for a new trial having been overruled it prosecutes this appeal. A number of grounds for reversal are insisted upon, some of which need not be noticed in detail.
We are of opinion that the Hardin Circuit Court had jurisdiction of the cause of action, the contract having been made in that county and service had upon appellant's agent or chief officer in Jefferson county. The slight mistake in the true name of appellant is not sufficient to invalidate the service.
We do not think that any error prejudicial to the substantial rights of the appellant was made in the admission of testimony.
If it be conceded that appellee should not have been allowed to state or read the report of what the cattle sold for in Cincinnati, yet the same facts were testified to by Bethel, who knew the facts of his own knowledge, and no attempt was made to dispute the same, hence the testimony of Tabor did not prejudice the substantial rights of the appellant.
The instructions given contain the law of the case and those refused were properly refused.
It appears that a written contract was signed by appellee and the agent aforesaid, which, among other things, provided that written notice of any injury to the cattle or claim for damages should be given to appellant before the cattle were unloaded or mixed with other cattle, otherwise, appellee should not be entitled to recover for any injury or damage. Also that it was agreed in said contract that the cattle were not worth over thirty dollars each.
No written notice was given, nor was appellee held on the trial to the valuation mentioned, and of this appellant complains, and insists that appellee could not recover anything, no notice having been given. Appellee admits the signing of the contract, but says he did not read it, and pleads that the stipulations therein are in violation of section 196 of the constitution of this State, which provides that no common carrier shall be permitted to contract for relief from its common law liability.
It seems to us that the provisions quoted are in violation of the section, supra. We do not agree with counsel for appellant that the section quoted is void because it conflicts with the interstate commerce clause of the Federal Constitution. It is in no sense an attempt to regulate interstate commerce, but simply determines what may or may not be a valid contract in this State. Hart v. Chicago, &c., Ry. Co., 69 Iowa, 485.
It is true that the common law as to the transportation of live stock is not the same in all respects as in regard to other articles, yet the carrier is bound to furnish a suitable and safe car, and no special contract can exonerate the carrier from liability for damages caused by the failure to so provide. (Rhodes v. L. & N. R. Co., 9 Bush, 690.)
The proof conduces to show that the injury complained of was the result of the floor of the car breaking. Certain it is that when the car reached Cincinnati there was a large break in the floor of the car containing the cattle. Public policy as well as the weight of authority requires that the carrier in such cases must show that the injury was not caused by the breakage, else they will be liable for such injuries or damage as may accrue to the stock, when it appears that such breakage would reasonably cause the injuries or damage shown to have occurred.
The proof in this cause was sufficient to authorize the verdict.
Judgment affirmed with damages.
June 6, 1896, Judge Guffy delivered the following supplemental opinion of the court:
We have considered the very earnest and able petition of appellant for a rehearing in this case and its brief in support of same, but we fail to see that the former opinion delivered herein is in any respect erroneous.
The contract relied on by appellant, if enforced, would practically relieve it from all the responsibility of a common carrier. The notice required to be given as a condition precedent to appellee's right to sue or recover, if enforced, would clearly limit the liability of appellant for injury to the cattle to a much shorter time than the common law allows, and would, if enforced, relieve appellant from all liability in this case, however gross or negligent appellant might have been; and, this being true, the stipulation is void because prohibited by section 196 of the Constitution, and this case illustrates the propriety and justice of the provision supra.
The cattle were injured in the car, one being dead and the others injured, and the bottom of the car broken, thus making it important to unload and dispose of the cattle as soon as possible; and it was the privilege, if not the bounden duty, of appellant's agents or servants to see to the unloading of the cattle, and it is fair to conclude that the agents did see to the unloading, and were, therefore, well aware of the damage sustained. And it further appears that the shipper was not in fact aware of any such provision being in the bills of affreightment; and, besides, it nowhere appears that appellant was in any way injured or any advantage taken of it by appellee's failure to give the notice.
The case of Gulf, C. & S. F. R. Co. v. Gann, 8 Texas Civil Appeals, 620, was a case where the shipper had signed or accepted a bill with a condition requiring notice of damage before suit should be brought, but a Texas statute provided in substance that such agreement should be invalid, and the court sustained the validity of the statute and allowed the shipper to recover, notwithstanding he had failed to give the stipulated notice.
In Galveston, H. & S. A. Ry. Co. v. Johnson, 29 S. W. Rep., 428, decided by the same court January 23, 1895, substantially the same question was raised and decided adversely to the contention of appellant. The shipment was made from Texas to another State. The opinion of the court was delivered by James, C. J. We quote as follows: ...
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