Missouri Valley R. R. v. Caldwell

8 Kan. 244

• Court: Supreme Court of Kansas
• Decided: July 15, 1871
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

Defendant in error brought suit in the district court to recover of plaintiff in error the value of a mirror which he alleged was broken through its negligence. The petition charged that defendant was a common carrier; that as such it received the mirror to transport it to Leavenworth; that it failed to deliver the same in good order, but so negligently and carelessly handled it that it was broken and wholly lost to plaintiff. The answer alleged that the mirror was shipped under an agreement that the transportation should be at the plaintiff’s risk as regards breakage, and a release of all claims against the company therefor. The original shipment was in New York, but the agreement and release were to apply to all the companies over whose roads the mirror should pass. The special verdict found that the mirror was shipped under such an agreement and release. Upon this two points are made by counsel for plaintiff in error, and strenuously urged: lst.-That there is a variance between the allegations of the petition and the facts as found by the verdict, and such a variance as entitled the company to a judgment; and 2d.-That under the terms of the agreement and release the carrier is not responsible for the breakage and loss of the mirror. The determination of these two questions disposes of the case.

I. Something of an argument might be made to show that this was no case of variance, but rather a case in which only part of the allegations of the'petition are proven. But waiving this, and conceding it to be a case of variance, still as it is such a case as would manifestly require the court to give leave to amend the petition to conform to the facts proven, and as the defendant could not justly claim to be prejudiced by such amendment, we do not think the judgment ought to be disturbed because no formal amendment has actually been made.

II. Whether and to what extent a common carrier can restrict his liability by special contract are questions of profoundest importance. Tet, as the decision of this case does not necessarily require a determination of them, we forbear to express any opinion upon either; for the agreement made at the time of shipment, if good at all, operated only to relieve the carrier from his common-law liability as insurer, and left him liable for ordinary negligence as any other bailee for hire: 6 Howard, U. S., 378. Now the facts as found by the jury show to us, more than ordinary negligence on the part of the carrier in the handling of this mirror. It was placed on the levee along with agricultural implements, and other heavy freight, in a narrow passage way through which drays and other vehicles were passing, “ standing upon its end, and not sufficiently supported to prevent its being easily overturned by any slight collision,” and without anything placed in front of it to protect it from injury by passing vehicles. In this exposed condition it remained for some hours, and was finally struck by a passing dray, overturned, and broken. The learned judge who tried the case held this to be negligence, and properly so. A good many other points are made by counsel for plaintiff in error, bnt none of them are of sufficient importance to justify us in disturbing the judgment. The judgment of the court below will be affirmed.

All the Justices concurring.