Trexler v. Baltimore & O. R. Co.

• Court: Pennsylvania Superior Court
• Writing for the Court: RICE, J.
• Citation: Trexler v. Baltimore & O. R. Co., 28 Pa.Super. 207 (Pa. Super. Ct. 1905)
• Decision Date: 13 July 1905
• Docket Number: 63-1904
• Parties: Trexler, Appellant, v. Baltimore & Ohio Railroad Company (No. 2)

28 Pa.Super. 207

Trexler, Appellant, v. Baltimore & Ohio Railroad Company (No. 2)

No. 63-1904

Superior Court of Pennsylvania

July 13, 1905

Argued October 25, 1904 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by plaintiffs, from judgment of C.P. Bedford Co.-1902, No 234, on verdict for plaintiff in case of J. F. Trexler and John L. Trexler, trading as Trexler Brothers & Co., v. Baltimore & Ohio Railroad Company.

Trespass to recover damages for the loss of a horse. Before Woods, P. J.

The facts appear by the opinion of the Superior Court and by the report of Trexler v. Baltimore & Ohio Railroad Company, No. 1, supra.

The court charged in part as follows:

[If you find from the evidence that the accident was caused by the carelessness of the defendant company alone, then Trexler Brothers would be entitled to recover. When this horse was shipped they entered into what has been termed a live stock contract, wherein they placed a value of $ 400 on this horse. After having considered the law as laid down by the Supreme Court of Pennsylvania, and the court of appeals of West Virginia, we have reached the conclusion that it is our duty to instruct you that they are limited to the value placed upon this horse by Mr. Reynolds, acting for them, when the horse was shipped, and we, therefore, say to you that if you find the defendant company guilty of negligence and said negligence was not contributed to, in any way, by John E. Hess, they cannot recover any greater sum than the $ 400, the value placed on him when shipped, with interest from February 5, 1902.]

2. Cars containing live stock and man require a greater degree of care than ordinary freight, and it was the duty of the railroad company to inform its employees, whose duty it was to inspect its cars, that a man and horse were in car No. 81,525, on the fifth section of No. 97, and if the company failed to inform the car inspectors in advance of the arrival of the car containing the horse and man, and the car was set on fire by the torch in the hands of one of the inspectors of the said defendant company during the inspection of the car, which could have been avoided by the inspector if he had possessed this information, it was negligence on the part of the company, and the verdict should be for the plaintiff. Answer: This point is refused with the following comment: As stated in the general charge, when John E. Hess undertook to accompany this horse, he took upon himself the dangers incident to this mode or way of travel, and by so doing no greater care was placed upon defendant company than they were already bound to exercise.

3. The defendant company is a common carrier and is liable for all losses that it could have prevented by skill and foresight, and the burden is on it to show that the injury to the plaintiffs' horse was such that it could not have been prevented, and if the jury believe the straw in the car was set on fire by the negligence of the agents of the defendant company, and that the accident could have been prevented if the defendant company had informed its car inspectors that a man and horse were in car No. 81,525, their verdict must be for the plaintiff. Answer: This point is refused with the following comment: As stated in the general charge, when John F. Hess undertook to accompany this horse, he took upon himself the dangers incident to this mode or way of travel, and by so doing no greater care was placed upon defendant company than they were already bound to exercise.

4. The defendant company must show that the accident was not caused by the negligence of its servants or employees, and if they fail to satisfy the jury of this fact by the preponderance of the evidence, the jury should return a verdict for the plaintiff for such damages as it deems just under the evidence. Answer: Refused. It is incumbent upon the plaintiff to satisfy the jury by a preponderance of testimony that the accident occurred by the employees of defendant company.

7. Under the evidence in the case, if the jury believe that at the time H. P. Reynolds delivered the horse to the agent of the Huntingdon & Broad Top Railroad Company for shipment to Pennsboro, West Virginia, he instructed the agent to ship the horse first class, and that the rules of the company prohibited said agent from fixing a valuation upon the horse in excess of $ 400, without special permission from the general manager of the railroad company, of which fact the said agent did not notify the said H.P. Reynolds, and that the said H. P. Reynolds, acting for the said plaintiff, did not discuss the rate of freight that was to be paid, or enter into any agreement whatever with Mr. Crum, the agent of the Huntingdon and Broad Top Railroad, with regard to the amount of freight that was to be paid, or the value of the horse, and that the amount of freight was to be paid at Pennsboro, West Virginia, where the horse was to be delivered, and the jury should further believe that the accident in the yards at Grafton, West Virginia, was occasioned by the negligence of the agents of the defendant company, then its verdict should be in favor of the plaintiff for the full value of the horse, as found by them from the evidence in the cause, regardless of the shipper's order, signed by H. P. Reynolds for Trexler Brothers & Company. Answer: This point is refused.

8. That while the note attached to the shipper's order, signed by H. P. Reynolds, may have given him an option to ship the horse at a higher valuation, yet the evidence in the case does not disclose that any such election was made, or that he was requested to make any such election by the agent of the railroad company but it appearing from the evidence that the only discussion on the freight to be paid was that the horse was to be shipped first class, and with the understanding that the amount of freight was to be paid at Pennsboro, West Virginia, and to be determined there by the defendant company, it left in the hands of the defendant company the power to charge such rate of freight as, under its rules, were commensurate with the shipment of a horse of this character at first-class rate. Answer: Refused, and for further answer see general charge.

9. That there is not sufficient evidence in this case to show a special contract between Trexler Brothers and the defendant company to warrant a limitation in the liability of the company for loss sustained by its negligence, under the law of West Virginia, and if the jury believe that this horse was injured in the yards of the defendant company at Grafton, West Virginia, through the gross negligence of the company, or its employees, their verdict should be for the plaintiff for the full value of the horse. Answer: This point is refused.

10. If the jury believe that the car, containing the horse and John E. Hess, was set on fire by torches in the hands of inspectors in the yards of the defendant company at Grafton, West Virginia, which resulted in the injury of the horse, it was such negligence as would entitle the plaintiff to recover the full value of the horse under the laws of the state of West Virginia, and the terms of the contract. Answer: This point is refused.

5. Under the contract for the shipment of the horse as shown by the evidence of this case, which must be construed according to the law of West Virginia, the state in which the injury complained of happened, if the plaintiff should be given a verdict it must in any event be limited to the amount designated in said contract with interest. Answer: This point is affirmed, as stated in the general charge.

Verdict and judgment for plaintiff for $ 443.60. Plaintiff appealed.

Errors assigned were, above instructions, quoting them.

Appeal dismissed.

John H. Jordan, with him H. H. Waite, for appellant. -- In West Virginia the carrier cannot limit its liability for injury occasioned by negligence that was either gross, wanton or willful: Maslin v. R. R. Co., 14 W.Va. 180; Brown v. Adams Express Co., 15 W.Va. 812.

In order to bring this case under the rulings of Zouch v. Railway Company, 36 W.Va. 524 (15 S.E. 185), it was incumbent on the defendant to show by competent evidence, as has been repeatedly ruled by the courts in West Virginia, first, that a contract for the purpose of reducing the valuation of the horse had been fairly entered into and signed by the shipper; second, that a consideration was specially entered into and agreed upon in order to support that special agreement; and third, that the injury was not inflicted through the gross, wanton or willful negligence of the defendant company. A common carrier is liable for all losses that he could have prevented by skill and foresight, and the onus is on him to show that the loss was such as he could not have prevented: Baltimore & Ohio R. R. Co. v. Morehead, 5 W.Va. 293; Brown v. Adams Express Co., 15 W.Va. 812; Searle v. Ry. Co., 32 W.Va. 370 (9 S.E. 248); Carrico v. W.Va. Cent., etc., Ry. Co., 39 W.Va. 86 (19 S.E. 571).

Gross negligence is simply want of that care which every man of common sense, under the circumstances, takes of his own property: Lancaster County Nat. Bank v. Smith, 62 Pa. 47; First Nat. Bank of Allentown v. Rex, 89 Pa. 308.

J. H Longenecker and W. H. Koontz, with them S. R. Longenecker, for appellee. -- Common honesty requires that a shipper should not be permitted to have two values on his property, -- one for shipping purposes and another seven and a half times as much for compensation when a loss occurs: Weiller v. Penna. R. R. Co., 134 Pa. 310; Hart v. Penna. R. R. Co., 112 U.S. 331 (5 S.Ct. 151); Alair v. R. R. Co., 53 Minn. 160 (54 N.W. 1072); Graves v. Lake Shore & Mich. Southern R. R. Co., 137 Mass. 33; Pacific Express Co. v. Foley, 46 Kan. 457 (...