Wabash Railroad Company v. Priddy

Decision Date07 May 1913
Docket Number21,970
Citation101 N.E. 724,179 Ind. 483
PartiesWabash Railroad Company et al. v. Priddy et al
CourtIndiana Supreme Court

From Huntington Circuit Court; Samuel E. Cook, Judge.

Action by John L. Priddy and others against the Wabash Railroad Company and others. From a judgment for plaintiffs, the defendants, except the Louisville and Nashville Railroad Company, appeal. (Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)


E. C Field, H. R. Kurrie and Stuart, Hammond & Simms, for appellants.

Eichhorn & Vaughn and Lesh & Lesh, for appellees.


Myers, C. J.

Complaint in one paragraph alleging that appellants and the Louisville and Nashville Railroad Company, were on January 27, 1907 corporations engaged as common carriers, and as such operating lines of railroad in Indiana; that the Louisville and Nashville Railroad Company operated a line between Nashville, Tennessee, and Louisville, Kentucky; the Chicago, Indianapolis and Louisville Railway Company from Louisville, Kentucky, to Lafayette, Indiana; and the Wabash Railroad Company, from Lafayette, Indiana, to Huntington, Indiana. That on January 27, 1907, plaintiffs delivered to the Nashville, Chattanooga and St. Louis Railway Company, not sued in this action, a corporation engaged in operating a railroad as common carrier for hire from the town of Shelbyville, Tennessee, to the city of Nashville, Tennessee, for carriage to the city of Huntington, Indiana, twenty-eight mules, all alive and sound, and of the value of $ 6,500, the title to which was in the plaintiffs; that said property was delivered to said railroad company as such carrier, to be shipped, carried and delivered, at the regular freight charge by said defendants and said Nashville, Chattanooga and St. Louis Railway Company, for carriage of such property, consigned to plaintiffs; that the regular freight rates for such shipment over said lines from said Shelbyville, Tennessee, to Huntington, Indiana, was $ 113; that said Nashville, Chattanooga and St. Louis Railway Company, and said defendants undertook to, and agreed for said consideration of $ 113, to ship and cause to be shipped, said mules from Shelbyville, Tennessee, to Huntington, Indiana; that the mules were delivered to the Nashville, Chattanooga and St. Louis Railway Company, and by it delivered in good condition to the Louisville and Nashville Railroad Company. It is alleged that the shippers were excluded from accompanying the train carrying the mules, and various detailed acts of alleged negligent omission and commission were charged against the carriers, after the receipt of the car by the Louisville and Nashville Railroad Company, such as, failure to water or feed, unnecessary delay in transportation, suffering the animals, with notice that some of them were down in the car and fastened with legs through the car, and being trampled upon and injured by the others, to be without attention paid to them, and showing that the weather became extreme, and for want of water and feed, the animals were greatly injured in their market value. It is alleged in the complaint "that at the time of said shipment there was a traffic agreement and arrangement existing between all of said railroad companies as common carriers in the shipment of property over their lines of railroad, and a partnership or running agreement between said defendants, that by and in accordance with said partnership, traffic, and running arrangement, the said carload of mules were shipped in one car from Shelbyville, Tennessee, over said line of railroad to Huntington, Indiana. That no transfer was made of said mules into any other car during the entire shipment. That after said mules were loaded into said car at Shelbyville, they were not unloaded until they reached Huntington. That by said traffic agreement, running arrangement and partnership between said companies, they were to share in the profits and losses resulting from said shipment. That said defendants each shared in the profits of said freight charge of $ 113, which was divided between them according to said traffic agreement then and theretofore existing, as herein alleged. That they were overcharged and compelled to pay an excess freight of $ 51 above the price agreed upon, which was shared in between all the said companies by virtue of said arrangement between themselves." Demand for damages.

Appellants each unsuccessfully demurred to the complaint for want of facts sufficient to constitute a cause of action, and they answered separately by general denial.

The Wabash Railroad Company, for a second paragraph, answered, that the mules were shipped under a written contract, set out in the answer, and denied any partnership or agreement between it and any of the other companies, or any agreement to share in the profits of shipping anything, but that each of the companies had specific charges based upon the character and kind of freight, and neither had any authority to bind it by any contract, for negligence on the line of another company, and set out specifically a clause in the written contract providing for delivery to connecting carriers upon such terms and conditions as the connecting carrier will accept, providing that the terms and conditions of the bill of lading should inure to any carrier unless they should otherwise stipulate, but in no event shall one carrier be liable for the negligence of another. That it received the car of mules, February 4, 1907, at 2 p. m., and delivered it at Huntington at 11 a. m. on the 5th. That before delivery to the Wabash Railroad Company, the Chicago, Indianapolis and Louisville Railway Company, fed and watered the mules, and that 21 hours after they were watered and fed, they were delivered at Huntington, and that before it started the car of mules, it had express orders from appellees not to water or feed between Lafayette and Huntington. That it transported the mules carefully, and no injury occurred while in its charge, and if there was an injury, it occurred prior to delivery to it.

The third paragraph avers shipment under a written contract, one specification of which is, that "The party of the second part, (the shipper) hereby assumes all risk of injury which the animals or any of them may receive in consequence of either or any of them being wild, unruly or weak, or by maiming each other or themselves," and the injuries arose solely by reason of their being wild, unruly and weak, and by reason of their maiming themselves and not otherwise, and that none of their injuries complained of occurred on account of the carelessness or negligence of any of the roads over which the stock was shipped.

Appellant Chicago, Indianapolis and Louisville Railway Company, answered by a second paragraph, setting up shipment under the same written contract, and counts as a defense upon the same clause exempting it from loss by reason of the character of the animals, and the provision that it shall be the duty of the shipper to securely place the animals in the car, and see that the car is properly fastened to prevent escape from it, and another clause providing that the damages in case of loss shall be the value at the place of shipment, and not to exceed $ 75 for each animal. The paragraph is otherwise the same as the third paragraph of answer of the Wabash Railroad Company.

The third paragraph of the Chicago, Indianapolis and Louisville Railway Company counts upon the written contract of shipment, and alleges that there were at the time two joint through shipping rates on file with the Interstate Commerce Commission, between Shelbyville, Tennessee, and Huntington, Indiana, over the lines over which the shipment moved, and they were the only lawful rates which could be applied to the shipment, and all the railways were parties to such joint tariff; that it was expressly provided in the tariff that a lower rate could only be enjoyed by a shipper entering into a contract limiting the common-law liability, and that plaintiffs were given said lower rate of freight, and if they had not done so, would have been charged a higher rate, and received a rate twenty per cent lower than the rate which would otherwise have applied, and that this defendant, and all other railroads over which shipment was made complied with their contract, and carried the stock carefully, and without negligence. Demurrers for want of facts to constitute a defense were sustained to the second and third paragraphs of answer of the defendants, Wabash Railroad Company, and Chicago, Indianapolis and Louisville Railway Company, respectively. The Louisville and Nashville Railroad Company was also a defendant, and filed a general denial, and affirmative answers, but upon a finding of facts and conclusions of law stated, that company was released.

There were exceptions to the conclusions of law by the other two companies, but no question is raised as to the conclusions of law, and over separate motions for a new trial, judgment was rendered against those companies. A term appeal was taken, and the Louisville and Nashville Railroad Company is not a party here. The errors assigned by each appellant, and not waived, are the rulings on the demurrers to the complaint and the answers, an original assignment of want of jurisdiction of the subject-matter, and overruling their motions for a new trial.

They could have shown under the general denial, unless the act of 1905 (Acts 1905 p. 58) is valid and applicable, that the injury did not occur on their lines, or from negligence, if the facts so be, and also the existence of the special contract. As to the question of rates, or the reasonableness of rates, another question may be presented. It is urged that even if the Indiana statute (Acts...

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