Whitney v. Chicago & Northwestern Railway Co.

27 Wis. 327

• Court: Wisconsin Supreme Court
• Decided: June 15, 1870
• Status: Published

Opinion

Cole, J.

We shall not attempt to notice all the exceptions taken to the rulings of the court below on the trial of this cause, but only those we deem the most important and material.

In the first place, it is insisted, on the part of the defendant, that the court below erred in refusing to compel the plaintiffs to elect whether they would charge the company for the property destroyed upon the liability of a common carrier, or upon that of a warehouseman. The complaint contained what would be called, under the former practice, five special counts; the first two charge the defendant upon its promise and undertaking, as a common carrier, to safely and securely transport two several lots of wool from the places where it received them into its possession to its freight depot at Chicago, and there deliver them to the plaintiffs; and that, through its negligence and improper "conduct and that of its servants in respect to the said goods, the same were destroyed by fire; and the other three counts, in substance, charge that the company, in consideration of a reasonable reward, undertook and promised to store and safely keep the same wool in its warehouse in Chicago, and to preserve the property; but that, through the negligence and improper conduct of the defendant and its servants, and their failure to take ordinary care of the goods, the same were damaged and destroyed by fire.

The defendant put in an answer to these several causes of action, and upon the trial made a motion— founded upon an affidavit of one of its attorneys, that the goods mentioned in the first and second causes of action were the same as those mentioned in the other three — that the plaintiffs be compelled to elect upon which of the causes of action stated in the complaint they would seek a recovery, and in default of such election that all but the first and second causes of action be stricken out of the complaint. This motion was denied. It seems to us that there was no error in this ruling of the court.

There are no special reasons, nor for that matter are there any reasons whatever, stated in the affidavit of Mr. Ruger, why the plaintiffs should be compelled to elect upon which causes of action they would proceed. There were two different lots' of wool received by the company as carrier, at different times and places. It might be difficult to tell in advance what the evidence would show in regard to the liability of the defendant, and what facts would appear on the trial. The proofs might show that even in respect to the same lot of wool the company was liable as to a portion as carrier, and as to the rest was only liable as warehouseman. Of course the plaintiffs would be entitled to recover for the loss, if the evidence showed that the defendant was responsible therefor in either capacity." It does not appear that the defendant was in any way misled by the form of the complaint, or embarrassed in making its defense. It must have known the precise nature of the claim made, and did in fact fully answer each distinct cause of action. It is said that the plaintiff ought to understand his own case, and that the Code requires that he should state the precise facts constituting his cause of action as he expects to prove it on the trial. This, as a general rule, is undoubtedly true; but it is not always possible in a transaction of this character to ascertain the real ground of liability. The present case furnishes a good illustration of the correctness of this remark. Before the proofs were in, it would be impossible to tell whether the defendant could be held to the liability of a carrier or only to that of a warehouseman. And as no substantial reason was shown for compelling the plaintiffs to elect upon what ground they would attempt to charge the defendant, the court, we think, was guilty of no abuse of discretion in refusing to grant the motion. And the same answer manifestly must be given to the exception taken to the ruling of the codrt in denying the same motion when subsequently made, after some of the depositions were read.

A great number of exceptions were taken to the rulings of the court in admitting and excluding testimony given or offered. These exceptions can only be considered in the most general manner. There was considerable testimony admitted, under objection, in respect to the character and location of. the depot building in which the plaintiffs’ wool was stored when consumed by fire. In one aspect of the case at least, and as affecting the liability of the defendant as carrier, and perhaps as warehouseman, this evidence was obviously material and pertinent. It was the duty of the company to provide reasonably safe depot buildings in which freight and property which was transported over its road might be securely stored when convenience and necessity required that such property should be placed in store. The character, then, of this freight depot, the materials of which it was composed, its liability to take fire on exposure, and facts of that nature, were certainly circumstances bearing upon the question of negligence, and whether the defendant had been guilty of any omission of duty in storing the plaintiffs’ property in a reasonably safe warehouse.

But it is now insisted that evidence of this character was inadmissible under the allegations of the complaint. The complaint, it is said, laid no foundation for the admission of such testimony, since there -was nothing therein stated which' apprised the defendant that negligence was predicated upon its failure to provide a suitable and reasonably safe freight depot. It is true, there is no allegation of negligence in this' particular. The averment is general, that the property was destroyed while in the defendant’s custody through the negligence and improper conduct of its agents and servants, who failed to exercise ordinary care in protecting the property. But it is a sufficient answer to this objection to say that this was not the ground upon which the inadmissibility of the evidence was placed when offered. If this objection had been taken, that the complaint was too general in its allegations to admit the evidence, the objection might have been obviated by an amendment on the trial. We do not intend to decide that the specific act constituting or showing the negligence must necessarily be stated in order to admit evidence to establish it, but merely that under the circumstances the objection that the allegation in the complaint was too general to admit the testimony we have been considering, is not available at this time. Substantially the same objection is taken in the argument to other testimony which was admitted, in respect to the competency of defendant’s servants, that no proper foundation was laid for its admission in the complaint. The objection, however, qannot now preyail, for the reason above given, that it comes too late.

So, also, it appears to us that the evidence objected to in regard to the facilities of the company for putting out fires, or for saving property in case of fire, and whether there was a sufficient watch in and about the depot to give the alarm, and who used the proper means to extinguish the fire, was competent to go to the jury on the question whether the company had exercised reasonable care and diligence in the storage and keeping of the wool. All this testimony had a bearing more or less remote upon that question.

It seems to us that it needs but a few remarks to vindicate the correctness of the ruling of the court below in admitting the evidence in regard to wool waste and its liability to spontaneous combustion under certain circumstances. For there was certainly testimony from which the jury might well have found that wool waste was stored in this freight depot with the plaintiffs’ wool. There was evidence, too, that wool waste was generally transported in old, greasy sacks, and that by its weight and external appearance it could be distinguished by those accustomed to handling wool. Manufacturers and persons engaged in the wool trade and acquainted with the different kinds of wool waste were permitted to testify in regard to these different kinds, and the liability of some varieties, particularly “ card waste,” so called, to ignite when wet or damp and closely packed, and the custom of warehousemen in storing and keeping the article. These persons had practical knowledge and experience in regard to the subject on which they were called on to speak. Inexperienced persons might not know that wool waste under certain conditions was liable to spontaneous combustion; and therefore persons experienced in handling wool, and who possessed peculiar knowledge upon the subject of wool waste, might properly testify as to its nature and qualities, and how it was regarded in the trade. In a certain sense they were experts, “ persons instructed by experience,” even if they had not all actually tested by experiment the liability of wool waste under certain circumstances to spontaneously ignite. “ On questions of science, skill or trade, or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence.” 1 G-reenl. Ev. §§ 440 and 440 a, Redfield’s ed. Under this well settled principle, we think the evidence in respect to wool waste was admissible. And in this connection we may, perhaps, as well as anywhere, add a few words in respect to the refusal of the court to give certain instructions asked about this wool waste. The court gave the 24th special instruction asked by the company, which was to the effect that if there was stored in the defendant’s depot, with the plaintiffs’ property, ordinary wool sacks, from all external indications appearing to contain wool, but which in fact contained wool waste or cotton waste-,, negligence on that account cannot be imputed to the defendant, unless it appears that such waste is not a proper article for storage in depots with ordinary miscellaneous merchandise, and unless the evidence shows that some of the defendant’s servants knew or had reason to think that such sacks contained waste instead of wool. This was fairly submitting, to the jury the question whether it was negligence on the part of the company to store the wool waste in its depot with other freight, and whether the evidence showed that the agents of the company knew or should have known what the sacks contained. It seems to us that this instruction, together with the sixth instruction given at the request of the plaintiffs (that if the evidence showed that the depot was burned by reason of the spontaneous combustion of wool waste stored therein, and that, by the exercise of that care and caution which ordinarily prudent men exercise in the care of their own property, the servants in charge of the depot would have discovered such dangerous article, and so stored it that in case of spontaneous combustion it would not have endangered the entire contents of the building, and that they failed to do so, the defendant was chargeable with negligence as a warehouseman), embraced all that it was necessary to say upon this branch of the case. The 22d, 23d, 25th and 26th instructions relating to the wool waste, asked on the part of the defendant, are either incorrect as propositions of law or assume facts as proven which the jury would necessarily have to pass upon in considering the evidence. For these reasons they were objectionable.

The exceptions taken to the ruling of the court in giving and refusing to give certain instructions asked, are likewise too numerous to be referred to in detail. We may say, however, at the outset, that all questions as to the company’s liability as a common carrier; when that liability ceased; whether the parties must be presumed to have contracted with reference to the laws of this state or the laws of Illinois; and what rule is to govern in respect to the continuance of that liability — are all out of the case, as we interpret the verdict of the jury.

The plaintiffs sued to recover the value of two lots of wool, one of which was shipped at Waukegan, Ill., and the other at Ripon, in this state. In respect to the former lot, it was conceded that the defendant was not liable as a common carrier, but only as a warehouseman for hire. For the Ripon consignment it was claimed that it was liable as carrier; and that as to both shipments it was liable as warehouseman. The jury found that the company was responsible for the entire quantity of wool. Now, it is very evident they could so find only upon the ground that the evidence showed that the company had neglected its duty as mere warehouseman. If it was responsible for the whole loss in that capacity,-all questions as to. its liability as carrier became immaterial. A moment’s reflection must convince any one that this is a correct view of the case. This being so, the remaining question is, What degree of care and diligence was the company bound to exercise in storing and keeping the property ? It is claimed on the part of the company, 1st, that it was a gratuitous bailee, and that the degree of diligence required was slight care, and that it was only liable for gross neglect; or, 2d, that if this were not so, then it was only bound to use the same degree of care as is usually exercised by railway carriers in storing similar goods in readiness for delivery to consignees under like circumstances. Both of these propositions were embraced in instructions which the defendant asked should be given. The court, in effect, held that as to all the wool for which the company was not liable as a carrier, it acted in the capacity of warehouseman for hire, and was liable for all damages to it caused by the want of ordinary care and diligence in storing and keeping the property. We think it very clear that this instruction in regard to the degree of diligence required of the defendant was correct, and in accordance with the authorities. We know of no reason in law or public policy, which requires any other or different rule of liability to be applied-to railroad companies when acting as warehousemen, than is generally attached to that character of bailment. Ware-housemen are responsible for ordinary care and diligence in the discharge of the duties incident to the business in which they are engaged; and the railroad company was bound to exercise the same degree of diligence. If the company is unwilling to assume that responsibility, it should, when the transit is ended, deposit the property in the warehouse of a third party. The position that the defendant, in the storage of the wool in its depot and keeping it there, was acting as a gratuitous bailee, and was not liable for the loss unless guilty of gross negligence, is so obviously unsound that it needs no comment.

The objection to the 32d instruction is, that it assumes that the defendant had shown that the wool was destroyed “by an accidental fire.” Now the jury may have found, in all probability did find, from the evidence, that the property was destroyed by a fire occasioned by the spontaneous combustion of the waste wool, and that it was negligence to store so dangerous an article in that building. Indeed, the objection to many of the instructions asked by the defendant is, that they assume facts as proven which are in dispute.

That interest was recoverable has been decided in two cases against this same defendant. Chapman v. Chicago and Northwestern R. R. Co. 26 Wis. 295; Kellogg v. Same, id. 223.

Upon the whole case, it seems to us that the question of the defendant’s negligence was fairly submitted to the jury upon proper instructions, and the jury have found the company liable as warehouseman. We do not feel warranted upon this record in setting aside the verdict upon the ground that it is wholly unsupported by the evidence.

By the Court. — The judgment of the circuit court is affirmed.

Paine, J., took no part in the decision of this case.