Reynolds v. Adams Express Co

• Decision Date: 15 November 1916
• Docket Number: (No. 358.)
• Citation: 90 S.E. 510
• Court: North Carolina Supreme Court
• Parties: REYNOLDS. v. ADAMS EXPRESS CO.

(172 N.C. 487)

90 S.E. 510

REYNOLDS.

v.ADAMS EXPRESS CO.

(No. 358.)

Supreme Court of North Carolina.

Nov. 15, 1916.

Appeal from Superior Court, Forsyth County; J. L. Webb, Judge.

Action by W. N. Reynolds against the Adams Express Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The action was to recover for injuries to a racing mare, shipped by express over a route of defendant company from Winchester, Va., to Hanover, Pa., in September, 1913. There was denial of liability on the part of defendant, and plea further that, in reference to this shipment, defendant was a common carrier, engaged in interstate commerce; that it had filed its schedule of rates with the Interstate Commerce Commission, and under the contract of shipment the company's liability, in any event, was restricted to $100. The schedule of rates was presented in evidence in support of the plea and on issues submitted the jury rendered the following verdict:

"(1) Did the defendant breach its contract as alleged in the complaint? Answer: Yes.

"(2) If so, was the plaintiff's horse injured by the negligence of the defendant, while being transported in violation of the said contract, as alleged in the complaint? Answer: ' Yes.

"(3) What damage, if any, has the plaintiff sustained by reason of said injury? Answer: $2,500.00, twenty-five hundred."

Judgment on the verdict for plaintiff, and defendant excepted and appealed, assigning for error, chiefly, that the jury were allowed to award damages in excess of the amount specified in the contract.

Winston & Biggs, of Raleigh, and J. C. Buxton, Watson, Watson & Robinson, and R. G. Parker, all of Winston-Salem, for appellant.

Manly, Hendren & Womble, of Winston-Salem, for appellee.

HOKE, J. (after stating the facts as above). The complaint alleged, and the proof on the part of plaintiff tended to show:

That in September, 1913, "the plaintiff, through his duly authorized agent, H. N. Reaves, and in the name of said H. N. Reaves, contracted with the defendant to carry by express two race horses from the town of Winchester, Va., to the town of Hanover. Pa., and that said H. N. Reaves paid the defendant the charges required for the transportation of said horses by express. That, although the defendant accepted said horses for transportation by express, and contracted with the plaintiff's agent to ship them by express, from Winchester, Va., to Hanover, Pa., when the car in which the horses were being shipped reached York, Pa., it was cut off from the express train and was placed on the freight yards, where it was allowed to remain for several hours, and was then, in violation of the defendant's contract, attached to a freight train, and the said horses were hauled from York, Pa., to Hanover, Pa., by freight train, which was in violation of the defendant's contract, it having contracted to ship said horses by express. That, while the car was being shifted by the freight trains on the yards at York, Pa., and on the route to Hanover, it was handled in such a rough and careless manner that one of the horses, a mare named Eudora, was knocked down twice, and was seriously and permanently injured."

The evidence introduced by plaintiff tended to show, further, that the horses were in a car prepared for the purpose, and for use only in connection with passenger train service, and that the witnesses had never known of horses in that kind of car, shipped by express, being connected with freight trains; that the injured mare was a racing animal of unusual success and great promise, and was worth $4,500 or $5,000; and that by reason of the injuries received while on the freight yards and being conveyed by freight train her value was reduced to $250 or $400. In regard to conditions caused by change in the character of the shipment, one of plaintiff's witnesses, D. P. Verner, the mare's keeper, testified, among other things, as follows:

"When we reached York, the mare was all right, just like she left Winchester. We got into York some time before day. When I waked the next morning, I looked out and we were in the York yards. I do not know exactly what time we left York, but we left on a freight train of about 40 cars. This express car was about the middle of the train. We were in the car, sitting on the side track at York, and they turned loose three box cars, and hit this car, and knocked this mare down, and it took two of us to get her up. I looked to see what hit the car, and three box cars were coming, turned loose, and hit the car, knocked two of the horses down, and knocked the trunks and sulkies down on each other, and then they put us on this freight train. They were shifting and making up this freight train with this express car in it. When we started to York, they would run awhile and stop and knock the cars against each other—just keep on doing that way, and knocked her down about half way between York and Hanover. When they knocked her down, it took two of us to get her up. Her hip was skinned, and all the hair was cut loose on her hind feet. They knocked her down again about half way between York and Hanover, and we got her up again, and she was awful nervous. I had to stand at her head practically all the way, and the train was running so you could not stand still, and the trunks and sulkies flapping about and making such a noise, and they would stop and knock up against the mare, and knocked her against the bar 2x4 across her breast, and knocked the window out at her head—just knocked her around all the way. I stood at her head all the way from York, trying to keep her quiet. They were handling her so rough she could not stand still, and she was excited. They had knocked her down twice, and she was nervous, and I was trying to keep her quiet as best I could. It looked like they would be running, and all at once stop and throw all of us on the horses. The other caretakers were trying to hold their horses to keep them quiet. When traveling with horses by express, the express company sends an express messenger with us in the car. An express messenger started out with us from Winchester, but I did not see anything more of him after we left York. He would not go in the freight. They are supposed to send a messenger with a carload of horses. I have traveled a great deal in cars with horses shipped by express. In a shipment by express, I never knew a car that I was in put in a freight train before. Ordinarily, express cars are hauled in express or passenger trains. Some of them are through express. When we reached Hanover, this mare was in bad condition; looked like she was on the verge of a chill, and could not walk; had to sort of push her along. She looked like she was broken down in the back; walked like a hog broken down in the loins, back of her hind legs; looked like the meat was cut loose on her hind legs from the hock down to the hoof; right hip skin knocked off, and left hip bone was injured; wasn't much skin off of it. There was a piece as big as your two hands on the right hip, but on the left hip just a little place, but it was sorer than the right hip."

For defendant there was evidence tending to show that, while it was not customary to ship horses under this kind of contract by freight, it was sometimes done for short distances and when no time would be lost by it. Defendant also introduced the schedule of rates filed with the Interstate Commerce Commission, showing the alternative rates for shipment by express where liability was limited to $100 and less sums, and an increased rate where valuation exceeded that sum, and relied on a clause in the contract of shipment in which these rates were set forth; the evidence tending to show that plaintiff had selected and made his contract in reference to the lower rate, and containing provision that the shipper, in order to avail himself of the lower rates, had valued each horse at $100, and "expressly agreed that in no event shall the express company be liable in excess of the above valuation, " and in this connection F. Mantz, division agent of the company, testified as follows:

"This is the contract that I made with Mr. Reaves. I was in Winchester when this contract was signed. I asked Mr. Reaves whether he wanted to put any value on the horses, and he says, 'Oh, I guess not, ' and so he signed the contract. They were put...