Union Pac. Ry. Co. v. Marston

• Decision Date: 17 September 1890
• Citation: 46 N.W. 485,30 Neb. 241
• Parties: UNION PAC. RY. CO. v. MARSTON.
• Court: Nebraska Supreme Court

30 Neb. 241

46 N.W. 485

UNION PAC. RY. CO.

v.MARSTON.

Supreme Court of Nebraska.

Sept. 17, 1890.

Syllabus by the Court.

1. M. applied to an agent of the Rock Island & Peoria Railroad Company, at one of its stations in the state of Illinois, to ship certain office furniture, including a stove, to Kearney, on the line of defendant's road in this state. The agent informed M. that the custom was for shippers to release stoves, but advised him not to do it, for reasons given, but to pay the additional expense of sending it at carrier's risk. To this M. assented, and offered to pay the freight to said agent, who informed him that he could as well pay it at the end of the route. The agent placed the goods into a car of a freight train, which proceeded on its way. Four or five hours afterwards the agent handed him a paper, saying that it was a receipt for the goods shipped. This paper M. put in his pocket, without examining it, and which proved to be a bill of lading of the goods, containing inter alia the condition, “stoves at owner's risk of breakage.” The goods were received at C. B. from the R. I. R. R. by defendant, and carried to K. Upon arrival the stove was found to have been broken en route. In an action by M. against the U. P. Ry. Co. for damages for injury to stove, held that, as between M. and the R. I. & P. R. R. Co., the stove was carried at carrier's risk.

2. Certain instructions given as requested, and others modified, and given as modified, set out with such modifications in the opinion, held rightly given, and rightly given as modified.

3. The evidence held to sustain the verdict, especially in view of the fact that upon the trial the jury were ordered and permitted by the court, at the request of defendant, to go out in charge of a bailiff and examine the stove in its broken and damaged condition.

Error to district court, Buffalo county; HAMER, Judge.J. M. Thurston, W. R. Kelly, and J. S. Shropshire, for plaintiff in error.

Ira D. Marston, for defendant in error.

COBB, C. J.

The plaintiff below alleged that the defendant is a railway corporation, under the laws of the United States, doing business in this state as a common carrier of freight and passengers; that on December 30, 1885, by itself and its duly-authorized agent, it received, at Cambridge, Ill., for transportation to Kearney, Neb., one hard-coal base-burner stove, of the value of $40, and thereby agreed, in consideration of $1.52 per hundred-weight, to safely transport and deliver the same to the plaintiff at Kearney; that no part of said agreement was in writing, but that the defendant, by its said agent, delivered to the plaintiff a certain receipt or bill of lading, a true copy of which is attached hereto, but that its conditions were not brought to the plaintiff's notice, or accepted by him. On the contrary, it was expressly agreed that said goods should be shipped at the carrier's risk, and the rate of freight demanded for transportation at carrier's risk was paid to the agent. It is alleged that the weight of the stove was 340 pounds; that he paid the defendant for transportation to Kearney $1.52 per hundred pounds; that the defendant did not safely transport the stove, but negligently and carelessly broke and destroyed the same while in its possession as such common carrier, and has not delivered it, as it was bound to do, to the damage of the plaintiff of $40, with interest from January 12, 1886, and asks judgment therefor, and costs of suit.

Exhibit D.

“Rock Island & Peoria Railway Company,Cambridge, Ills., January 1, 1886. Received of Ira D. Marston by the Rock Island & Peoria Railway Co., the following property in apparent good order, (except as noted, marked and consigned as in the margin,) which they agree to deliver with as reasonable dispatch as their general business will permit, subject to the conditions mentioned below, in like good order, (the dangers incident to railroad transportation, loss or damage by fire while at depots or stations, loss or damage of combustible articles by fire while in transit, and unavoidable accidents excepted,) at Rock Island station, upon the payment of charges. The company further agrees to forward the property to the place of destination, as per margin, but are not to be held liable on account thereof after the same shall be delivered as above. The company, however, guaranty the through rate of freight as designated below.

Conditions: The company do not agree to carry the property by any particular train, nor in time for any particular market. Oils and all other liquids at owner's risk; liquids in glass or earthen, drugs and medicines in boxes, glass and glassware in boxes, looking-glasses, marbles, stoves, stove plates, and light castings, earthen or queens ware, at owner's risk of breakage; agricultural implements, cabinet ware, and furniture, not boxed, and carriages, at owner's risk of breakage, or damage by chafing; oysters, poultry, dressed hogs, fresh meat, and provisions of all kinds, trees, shrubbery, fruits, and all perishable property, at owner's risk of frost and decay. It is a part of this agreement that all other carriers transporting the property herein receipted for, as a part of the through line, shall be entitled to the benefit of all the exceptions and conditions above mentioned; and if carried by water he is entitled to the further benefit of exception from loss or damage arising from collision, and all other dangers incident to lake and water navigation. All freight not taken away on arrival will be stored free for twenty-four hours, after which regular storage rates will be charged.

Marks and consignees. IRA D. MARSTON, Kearney, Nebr.

Agents will sign this form of shipping receipt, and no other, unless authority is given by the general freight agent. Agents will be particular to number both receipt and shipping bill, which must be alike.

Rate: $1.52 per cwt. from Cambridge, Ills., to Kearney, Neb.

Articles: 5 box-books; one desk, boxed; 1 blank case bks; 1 office chair; 1 stove, 1940 weight, (subject to correction.) G. A. COOPER, Agent.

State of Illinois, Henry county--ss.: On this twelfth day of August, 1886, personally appeared before me, G. A. Cooper, the signer of a copy of the bill of lading on the reverse side hereof, and, being duly sworn, says that the said copy is a true copy of the original bill of lading, as shown by the books of the Rock Island and Peoria Railroad Co., at their station. Cambridge, Ills., Aug't 13, 1886. G. A. COOPER. Subscribed and sworn to before me this 13th day of August, 1886. W. H. SHEPARD, Notary Public.”

The defendant answered that it is a railroad corporation organized under the laws of the United States, and that it has a defense to this action arising under said laws. Denying generally the allegations of the plaintiff, it says “that the plaintiff entered into a contract with the Rock Island & Peoria Railway Company for a certain price, whereby the said company agreed to transport the said stove; that neither the said railway company nor the Rock Island & Pacific Railroad Company, or either of them, were the agents of defendant at Cambridge, Ill., or that they acted as its agents in receiving and delivering the said stove; that the defendant herein has no line of road in the state of Illinois, and did not receive the stove, as alleged, from the plaintiff at Cambridge, and made no contract or agreement of any kind in respect to transporting and delivering said stove. It has no knowledge, other than that derived from the plaintiff's petition, that the Exhibit D attached thereto is a true and accurate copy of the bill of lading or agreement between the plaintiff and the Rock Island & Peoria Railway Company, and therefore denies the same.” “Defendant says that the said stove was not injured, broken, or destroyed on its line of road, and was not damaged in any way, while the same was in its possession.” The plaintiff repiled denying each and every allegation in the answer contained. There was a trial to a jury, with findings for the plaintiff, and damages assessed at $40. At the request of the defendant the jury returned special findings as follows: That the stove was broken between Cambridge and Kearney, on the Union Pacific Railroad, in the defendant's possession, by reason of the negligence of the defendant. The defendant's motion for a new trial being overruled, judgment was entered upon the verdict, to which the defendant excepted on the record, and brings it to this court on the assignment of errors as follows: (1) That the verdict is contrary to law, and is not sustained by the evidence; (2) that it is excessive, appearing to have been rendered under the influence of passion and prejudice; (3) for errors of law occurring at the trial, and duly excepted to by the defendant; (4) in modifying instructions Nos. 1, 2, 3, and 4, offered by defendant, and which should have been given without modification; (5) in refusing instructions Nos. 6 and 7 asked by defendant; (6) in giving plaintiff's instructions Nos. 3 and 5; (7)...