East Tennessee, Virginia & Georgia Railroad v. Johnston

75 Ala. 596

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

CLOPTON, J.

The increasing requirements of trade and commerce, the growing populousness of different and widely separated sections of tSe country, and the necessity for speedy transportation, have constituted the carriage of living animals by railway an extensive and important part of the employment of railroad companies. Since such companies have undertaken the transportation of live stock, their liability as such carriers has been the subject of frequent consideration and adjudication, and the decisions are not in harmony. The rule adopted in this State, when not modified by special contract, is, that “the eommon-lavv liability óf a carrier for the delivery of live animals is the same as that for the delivery of merchandise. Upon undertaking their transportation he assumes the obligation to deliver them safely against all contingencies, except such as wpuld excuse the non-delivery of other prop-, erty.”— S. & N. Ala. R. R. Co. v. Henlien, 52 Ala. 606. Under this rule the carrier, undertaking to transport cattle for. those who choose to employ him, assumes the full obligation to furnish safe and suitable vehicles, an adequate road, and to exercise due care and foresight to guard against loss or injury from external sources; but does not become an insurer, and his liability does not extend to any damage resulting from the nature, disposition or viciousness of the animal, or from any intrinsic cause, against which care and foresight could not provide.—Clark v. Ro. & Sy. R. R. Co., 14 N. Y. 570; 3 Am. & Eng. R. R. Cas. 489; Goldey v. Penn. R. R. Co., 30 Penn. St. 246; Welsh v. P., F. W. & C. R. R. Co., 10 Ohio St. 73.

To avoid liability for the unusual risks, peculiar to the transportation of such freight, it has become customary for carriers to make special contracts restricting their liability. Such contracts, when the limitations are just and reasonable and do not exempt the carrier from liability for any loss or injury caused by his own act or negligence, are maintained. ' A special agreement was made between the plaintiff and defendant, by which, in consideration of a reduced price, and a free'passage to the owner or his agent on the train with the stock, the owner assumed designated risks, and the defendant was released from any liability for damage resulting therefrom. $ These limitations, so far as are material in the consideration of the questions presented by the record, are as follows: “ Said owner and shipper do hereby assume and release said railroad from all injury, loss and damage, or depreciation, which the animals or either of themAmCyYuffeNnT consequence of either of them being weak, or escaping or injuring themselves or each other, or iti consequence "olT 'overloading,' heat, suffocation, fright, viciousness, or of being injured by fire or the burning of any material, while in the possession of the company, and from all other damage incidental to railroad or steamboat transportation, which shall not be established to have been caused by the gross negligence or delinquency of any of the officers or agents of said railroad or steamboat companies. And it is further agreed, that said owner or shipper is to load, transfer and unload, said stock at his or their own risk. And it is further agreed that, in case of accident to, or delays of time from any cause, the owner and shipper is to feed, water and take proper care of the stock at his own expense.” At the foot of the contract is a memorandum, that the plaintiff is in actual charge of the stock.

Tke_contract does not relieve the defendant from the duty to supply safe*and'Suitable vehicles. In respect to the adequacy of carriage, a carrier meets his duty and obligation when lie furnishes such as is most in use, and is approved by persons skilled and experienced in the business, as necessary and proper for safe transportation, having in view the kind and nature of the freight. The omission of any part or appliance, permanent or usual in the construction or preparation of a car, and which is necessary and proper to its adequacy for the general uses and purposes of railroad transportation, is prima facie negligence. But to charge the carrier with negligence, because of the omission of some peculiar, adventitious and temporal'}' preparation, the necessity or propriety must he 'shown by extraneous, evidence. . We can not affirm, as matter of law, that the failure to bed with straw or other material a car for the transportation of cattle is negligence per se. If, however, it were shown that to bed the car in such cases is usual and customary, and is such a precaution as a prudent, competent and faithful man, experienced in the business, would take, the carrier will he responsible for any injury caused by omission in this regard. This is the rule when the liability of the carrier is not modified by contract, and when he undertakes the transportation of cattle under the common law liability of safe delivery. Í

The charge given by the court asserts, on the hypothesis stated, that it was the duty of the defendant to bed the c&r furnished the plaintiff. The instruction should be considered in connection with the special agreement. This contract was for the use of a car for the transportation of cattle — a hiring of the car, — having reference to the cars in irse on the defendant’s, road. There was no stipulation for any particular kind of car. The extent of the obligation of the defendant was to furnish a safe, serviceable and adequate car, adapted to the use intended. The plaintiff retained control and charge of the cattle, and assumed the risk and responsibility of loading. His understanding of the contract-may be inferred from the fact that he had provided material for bedding the car. The defendant will not he held liable for any loss or injury arising from the fault or neglect of the plaintiff.—Kimball v. Rut. & Bur. R. R. Co. 26 Vt. 247.

0 When the car was delivered to the plaintiff, he knew it was not bedded, and accepted it without objection. He should have been allowed a reasonable opportunity to bed it, if bed-, ding is necessary and proper. But after having assumed, by the special contract, the duty of the proper storage of his cattle', and after having accepted and loaded the car without objection, the plaintiff can not hold the defendant liable for negligence because of the insufficient bedding of the car. “ The owner, by entering into the contract, virtually agrees, that in respect to the particular transaction, the carrier is not to be regarded as in the exercise of his public employment, but as a private person, who incurs no responsibility beyond that of an ordinary bailee for hire,- and. answerable only for misconduct or negligence.”—New Jer. St. Nav. Co. v. Mer. Bank, 6 How. 344; Chi. & N. W. R. R. Co. v. Van Dresar, 22 Wis. 511; Harris v. No. In. R. R. Co., 20 N. Y. 232; Shoemaker v. Kingsbury, 12 Wal. 369.

In this connection may properly be considered the admissibility of the proposed evidence of a usage or custom in resjject to bedding cars. Evidence of usage or custom will not be admitted when it contravenes or displaces any of the general principles of statutory or common law, or varies or contradicts the express terms of a contract, verbal or written. It may be regarded as settled, that the extent of the liability of a common carrier may be regulated or modified by a usage of the particular business, unless its. effect is to exempt the carrier ' from responsibility for his own misconduct or negligence. ■ Where there is an express contract, parol evidence of a usage is admissible to explain terms ambiguous or doubtful in signification, or from which to infer the intention, understanding and agreement of the parties, and to incorporate a stipulation •or element, wherein the contract is silent; in such case, the usage or custom becomes a part of the contract.—Barlow v. Lambent, 28 Ala. 704.

“ The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or parol; which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties knew of its existence, and contracted with' reference to it.”—Barnard v. Kellogg, 10 Wall. 383. In Mont. & Eu. R. R. Co. v. Kolb, 73 Ala. 396, it was held in resj>ect to delivery of goods for transportation, that “ proof of a contract and habitual practice and usage of the carrier to receive the goods when they were deposited for him in a particular place, without special notice of such deposit, is sufficient to show a public offer by the carrier to-receive goods in that mode, and to constitute an agreement between the parties, by which the goods, when so deposited, shall be considered as delivered to him without any further notice,” although such usage was contrary to the established regulation of the company.—Knox v. Rives, Battle & Co., 14 Ala. 249.

The usage must be reasonable, and if there is no positive •evidence that it is known to one of the parties, it must have been established and acted on generally, and sufficiently long to raise a presumption of its knowledge; but if it is personally known, the period of its duration is immaterial. When its existence is known, it constitutes an element of the contract, and will be considered by the court in adjudicating the rights of the parties.—Fulton Ins. Co. v. Milner, 23 Ala. 420 ; 1 Smith’s Lead. Cas. 934. The special agreement between the plaintiff and defendant is silent as to the kind of car to be furnished, or as to any special preparation of the car for the transportation of cattle, or as to what special duties were undertaken by the shipper in assuming to load and take charge of the cattle during the carriage. Evidence of a usage or custom, by which the shipper is to bed the car, known to him, and upon which he had acted in making previous shipments, is admissible for the purpose of interpreting and explaining the intention, meaning and ■ understanding of the parties in making the special agreement.

A drover of cattle, presumably, is more acquainted with their habits, tempers, and viciousness, and the proper mode of management, than the agents and servants of the carrier, and has a better understanding of the manner of loading, so as to guard against the risks of improper loading. Care and vigilance are requisite in transporting live animals by a mode of conveyance so opposed to their instincts, and calculated to excite their fears. The safety of the cattle, and the interests of the owner suggest the propriety of his undertaking the duty and burden of loading, transferring, and unloading, and retaining actual charge. There is nothing unreasonable in the provision of the contract, by which the1 owner assumed to load, transfer and unload. For any injury caused by over, or other improper loading, the defendant is not liable, if without fault or negligence on its part.—Squire v. N. Y. Central R. R. Co., 98 Mass. 239; Kimball v. Rut. & Burl. R. R. Co., 26 Vt. supra.

A carrier can not, by contract, relieve himself of the degree'... of care and diligence exacted by the common law. Any want' ' of such care and diligence is negligence. lie can exempt himself only from liability for loss or injury, not caused by his-own or his servant’s negligence. The clause of the contract exempting the defendant '■'from all other damages incidental to railroad or steamboat transportation, which shall not be-established to have been caused by the gross negligence or delinquency of any of the officers or agents of the said railroad or steamboat companies,” is unreasonable, and can not be maintained. The exception relieves the defendant of all negligence . less than gross. An injury having occurred, the onus of proof ,- is on the defendant to show, not only that the cause is within ) the exception, but that it was without negligence on the part'’’’ of the defendant.—S. & N. Ala. R. R. Co. v. Henlien, 52 Ala. 606 ; Steele & Burgess v. Townsend, 37 Ala. 247.

A carrier owes equal duty to all persons, who choose to employ him to transport freight. He is under no obligation to give one a preference over others. In making up a train,, large discretion must necessarily be allowed the company in assigning cars to different positions. It is, nevertheless, the-duty of the carrier to assign a car, loaded with freight of a particular nature, such position, so far as may be consistent with the safety and interests of other shippers, as will cause the least exposure to danger — not of shippers exclusively of the same kind of freight, but having reference to the nature and character of all kinds and classes of freight being transported. Although the defendant might have, consistently with its duty'to other shippers, placed the car at a greater distance from the engine, if the injury was not caused by its proximity thereto, the defendant is not liable for such' injury, if there was no negligence on its part causing the loss. There does not appear to be any evidence, on which to predicate the first instruction given at the request of the plaintiff, and for this reason the charge should have been refused ; but under our rulings, giving an abstract charge, if it asserts a correct legal proposition, .is not a reversible error.

The cattle were consigned to New Orleans. The measure of damages is the market value of the cattle at the place of destination, less the expense of transportation, although the defendant was not liable for any injury occurring beyond the terminus of its road.—S. & N. Ala. R. R. Co. v. Wood, 72 Ala. 451.

Reversed and remanded.