The Kansas City v. Simpson

• Court: Kansas Supreme Court
• Writing for the Court: HORTON, C. J.:
• Citation: The Kansas City v. Simpson, 2 P. 821, 30 Kan. 645 (Kan. 1883)
• Decision Date: 01 July 1883
• Parties: THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY v. RICHARD D. SIMPSON

2 P. 821

30 Kan. 645

THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY v. RICHARD D. SIMPSON

Supreme Court of Kansas

July 1, 1883

[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 the present case the damages cannot, in any event, exceed the sum of $ 300, which is the amount...