Welch v. N. Pac. Ry. Co.

• Decision Date: 16 December 1904
• Citation: 103 N.W. 396,14 N.D. 19
• Parties: WELCH v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

14 N.D. 19

103 N.W. 396

WELCH

v.NORTHERN PAC. RY. CO.^a1

Supreme Court of North Dakota.

Dec. 16, 1904.

Syllabus by the Court.

1. A contract between a common carrier and a shipper of stock, drawn by the common carrier, and for his benefit, so far as limiting his liability is concerned, is to be construed liberally in favor of the shipper.

2. A judgment notwithstanding the verdict will not be upheld, under chapter 63, p. 74, Laws 1901, on the ground merely that there was a variance between the cause of action stated and the proof adduced. It must further appear that no amendment of the complaint can properly be made.

3. A judgment notwithstanding the verdict will not be sustained, under chapter 63, p. 74, Laws 1901, on the ground that there was a failure of proof as to some essential element of the cause of action. It must further reasonably appear that such defect of proof cannot be supplied on another trial.

Appeal from District Court, Walsh County; W. J. Kneeshaw, Judge.

Action by Frank Welch against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Reversed.E. R. Sinkler, for appellant. Ball, Watson & Maclay, for respondent.

MORGAN, C. J.

The complaint in this action alleges that the defendant negligently failed to comply with its duty as a common carrier on a shipment of two car loads of sheep from St. Paul, Minn., to Grafton, N. D. The negligence charged is (1) overloading the cars; (2) delay in delivering the sheep, by reason of which they were not delivered at Grafton until 56 hours after loading, the usual time required to transport such property between said places being from 24 to 30 hours; (3) failure to feed and water the sheep while on the road. The answer sets forth the following affirmative defenses in addition to a general denial: (1) That the sheep were carried by the defendant between said places under a written contract stipulating that the defendant was not to be held liable for any damages for its failure to comply with said contract unless such damages were immediately caused by the misconduct or the actual negligence of the defendant, its agents, servants, or employés; (2) that plaintiff failed to comply with a stipulation of said contract providing that plaintiff should give notice in writing to some officer or station agent of said company of any damage claimed for breach of said contract before said sheep should be removed from the place of destination or mingled with other stock; (3) that any damages to plaintiff's sheep on said shipment under said contract were caused by plaintiff's misconduct and negligence. The jury returned a verdict in plaintiff's favor for the sum of $454. Upon the rendition of such verdict, the defendant moved for judgment notwithstanding the verdict upon the grounds stated in a motion for a directed verdict, which had been denied. These grounds were (1) insufficiency of the evidence to justify a verdict in plaintiff's favor; (2) failure to comply with the conditions imposed by the contract on plaintiff; (3) variance between the cause of action stated in the complaint and the proof relied on to sustain the cause of action.

Before the motion for judgment notwithstanding the verdict was granted, the plaintiff asked leave to amend the complaint in several particulars. Among the amendments asked was one alleging that the sheep were shipped under the written contract which had been received in evidence; that plaintiff had complied with all the conditions of the same; and another amendment was asked to the effect that the caboose on which the plaintiff was riding had been negligently separated from the cars in which the sheep were being carried, and that in consequence thereof the plaintiff was not able to care for such sheep for about 20 hours, and that they were damaged in consequence of not having been fed and watered during that time. The amendment asked further alleged that the defendant negligently refused to furnish facilities for feeding and watering said sheep during said shipment. On objection made, the court refused to allow the amendment.

The only question raised on the appeal is whether it was error to grant the motion for judgment notwithstanding the verdict. On the part of the respondent it is claimed that the evidence shows that the plaintiff is not entitled to recover under any circumstances, as a matter of law. He insists that, the plaintiff having alleged as his cause of action a common-law contract of carriage, he cannot recover under a special contract in writing, without having pleaded such special contract; that the defendant is entitled to the benefit of the conditions of such written contract limiting its liability under some circumstances, and imposing upon the plaintiff certain duties in reference to the performance of the contract that were not fulfilled by him. Defendant especially insists that the plaintiff is precluded from ever recovering judgment in the case, for the reason that he neglected to serve notice upon the defendant of damages to the sheep caused by defendant's negligence during the shipment, “before said stock had been removed from the place of destination or mingled with other stock,” as provided by the contract. The evidence fails to show a violation of this requirement. It is shown that the sheep were not removed beyond the limits of Grafton before the notice in writing was served, and it is also shown that the sheep were not mingled with other sheep until a long time after the notice was served. This provision was made a part of the contract for the benefit of the defendant, and the contract was drawn by the defendant. Such a contract...