[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Error
from Atchison District Court.
ACTION
by Richard D. Simpson against The Kansas City, St. Joseph
& Council Bluffs Railroad Company to recover $ 300 for
damages alleged to have been sustained on account of injuries
to a horse shipped from East Atchison to St. Joseph
Missouri. The defendant in its answer, among other things
averred that it was induced to and agreed to carry and
deliver the horse at the rate and price of $ 4 only, by
reason of a contract that its risk, in case of damage
thereto, should not exceed $ 100, and that in no case would a
breach of its said contract make its liability exceed that
sum. The following is a copy of the contract:
"LIVE
STOCK.
[Extract
from Freight Tariff.]
"At
these rates the owner is to feed, water and take care of his
stock at his own expense and risk, and is to assume all risk
of injury or damage that the animals may do themselves, or to
each other, or which may arise from any delay of trains
stock will only be taken by the car-load at the price fixed
under 'special tariff when a contract is executed by the
station agent and shipper, to be loaded and unloaded, watered
and fed by the owner, at his risk in all respects, except as
specified in form of contract, or receipt below. Two cars
will entitle owner or one driver to pass on the train with
the stock, to take care of it. From three to seven cars will
entitle two men in charge to pass on the stock train, which
is the maximum number that will be passed on any train from
one consignor or party, and at their own risk of personal
injury from any cause whatever.
"ORIGINAL.
"The
agent at the station where the stock is loaded will give no
passes, but must enter on the back of the contract the name
or names of the persons who actually accompany the stock,
which is the authority of the conductor to pass them. Return
passes will be given at the option of this company only.
"Live
stock in quantities less than a car-load will be rated as
follows: One horse or mule, 2,000 pounds; . . .
non-enumerated live stock of all kinds not shipped under
contract will be charged first-class rates, actual weight,
not less than fifty cents each. Attention of shippers is
especially directed to the fact that agents of this company
are not authorized to make arrangements for forwarding live
stock to be delivered at destination at a specified time. Due
diligence will be observed in sending the same forward.
"CONTRACT.
"No.
car, 742.--FREIGHT OFFICE, KANSAS CITY, ST. JOSEPH &
COUNCIL BLUFFS R. R. Co., E. ATCHISON STATION, September 3d,
1881.--Received of William Towne, one horse, to be delivered
at St. Jo. station, at special rates, being $ per car, back
charges, $ . In consideration of which, and for other
valuable consideration, it is hereby mutually agreed that the
said company shall not be liable for loss by jumping from the
cars, delay of trains from any cause, or any damage said
property may sustain, except such as may result from a
collision of the train, or when cars are thrown from the
track in the course of transportation. Nor will this company
be responsible in any case for any loss or damage which may
arise after said stock or property is delivered at the point
on its line where it is consigned by this contract, or when
it is to be turned over to any other company or boat for
further transportation to its destination. Value not to
exceed $ 100. To be fed and watered and taken care of by the
owner. P. paid, $ 4.
(Signed)
D.
BRISBOIS, Quad.
WM.
TOWNE."
Which
contract is indorsed as follows:
"Kansas
City, St. Joseph & Council Bluffs line. Stock contract
with Wm. Towne, Sept. 3d, 1881. Not transferable.--D.
BRISBOIS, East Atchison."
Trial
had before the court and jury, at the February Term for 1882.
The charge to the jury by Martin, J., was as follows:
"1.
This is an action to recover $ 300 for damages alleged to
have been sustained on account of injuries to a horse, which
was transported by defendant from East Atchison to St
Joseph, Missouri, over the line of its railroad, on or about
the 3d of September, 1881.
"2.
The horse was transported by the defendant under a special
written contract, of date September 3d, 1881, entered into
between the defendant and one William Towne. It does not
appear from the contract, a copy of which is set forth in
defendant's answer, that said Wm. Towne was acting as
agent for the plaintiff, nor for any other person. But if you
find from the evidence that at the time of entering into said
special contract the plaintiff, Richard D. Simpson, was the
owner of said horse, and that said Wm. Towne was agent of the
plaintiff, for the purpose of securing transportation, and
acted as such agent, then the plaintiff will have the same
rights under the said contract as if it had been entered into
with him and in his name.
"3.
A railroad company engaged in the business of transporting
live stock, assumes all the responsibilities of a common
carrier. In the absence of any special contract binding its
liability, it insures against all loss except that caused by
the act of God or of the public enemy. It may limit its
liability by special contract with the shipper or consignor
of the property, but such special contract can never relieve
the railroad company from liability from its own negligence.
"4.
The special contract in this case contains the following
clause: 'Said company shall not be liable for loss by
jumping from the cars, delay of trains from any cause, or any
damage said property may sustain, except such as may result
from a collision of the train, or when cars are thrown from
the track in the course of transportation.' It will be
observed that this special contract purports to limit the
liability of the railroad company for injury to the property
transported to two classes of perils, namely, 'collision
of trains, and being thrown from the track.' But
notwithstanding this contract, if the horse was injured by
the negligence of the railroad company, or want of ordinary
care on its part, then it would still be liable to the proper
party for the injury, although such negligence did not result
in 'collision of train,' nor 'in being thrown
from the track.' In such case, however, the burden of
proving such negligence is on the shipper, and it devolves
upon him to prove such negligence by a preponderance of the
evidence.
"5.
Under the pleadings in this case, before the plaintiff is
entitled to recover, you must be satisfied by a preponderance
of the evidence of the existence of each and all the
following facts, to wit: First, that the plaintiff was the
owner of the said horse at the time of the transportation
from East Atchison to St. Joseph, by the defendant; second,
that said horse was injured during said transportation;
third, that such injury to said horse was caused by the
negligence of the defendant, or its failure to exercise
ordinary care. Ordinary care is that degree of care which men
of ordinary prudence usually exercise under like
circumstances.
"6.
If you find the existence of each and all of the three
foregoing facts, then the plaintiff will be entitled to
recover; otherwise, not.
"7.
If you find that the plaintiff is entitled to recover, then
the next question for your consideration will be to determine
the amount of such recovery. Where property is injured by a
common carrier, by reason of the negligence of the carrier
the rule of damages is, the difference between the value of
the property as delivered at the time and place of delivery
and the value at the same place at the time and in the
condition that such property should have been delivered; and
this will be the rule, notwithstanding the fact that the
shipping contract may contain a clause stating that the value
of the property does not exceed a certain sum. But in ...
