87 Wis. 485 | Wis. | 1894
The jury found as a matter of fact, in effect, that the horses came to their death by reason of the negligence of the defendant. The horses were transported on the defendant’s car for a distance of about 140 miles, and the time occupied by such transportation was about thirty-four hours. During that time the horses had no food nor drink. According to the testimony of those in charge of the horses, the defendant refused to give them any opportunity to take the horses from the car and give them food and drink, though repeatedly requested so to do; that this was particularly so at Antigo, where the car remained about eight hours; that it was also true at other places; and that there were eight other horses in the same car, and it was impracticable to give them food and water ■without removing them from the car. It appears that the train reached Oshkosh about six hours behind schedule time. There is expert testimony to the effect that such exposure of the horses without food or drink probably induced the disease which caused their death. We must assume, therefore, that the evidence supports the verdict te the effect that the horses came to their death by reason of the negligence of the defendant.
The defense relied upon is that by the written contract of shipment contained in the foregoing statement the defendant was expressly exempted from all liability by reason of such negligence, and that the plaintiff thereby assumed all risk of such injury or damage. Such is, indeed, the contract, if we are to give literal effect to its language. In Betts v. Farmers' L. & T. Co 21 Wis. 80, it was said by DixoN, C. J., in speaking of the transportation of live stock, that, “ as to this species of property, we think it competent for the carrier to contract that the owner shall assume all risk of damage or injury from whatever cause happening in the course of transportation.” This proposition covers more ground than the point actually decided in that case,
The question recurs whether the defendant, by the contract of shipment, could lawfully exempt itself from liability for such negligence. This court has held that a common carrier of persons or property cannot by any agreement, however plain and explicit, wholly relieve itself from liability for injury resulting from its gross negligence or fraud. Black v. Goodrich Transp. Co. 55 Wis. 319; Lawson v. C., St. P., M. & O. R. Co. 64 Wis. 455. The same rule has been applied to a passenger carried gratuitously by a railroad upon a pass containing such a stipulation. Annas v. M. & N. R. Co. 67 Wis. 46. So this court has repeatedly held that a telegraph company cannot, by such stipulation, relieve itself from liability for damages happening by the want of ordinary care of itself or servants. Thompson v. W. U. Tel. Co. 64 Wis. 531; Hibbard v. W. U. Tel. Co. 33 Wis. 558; Candee v. W. U. Tel. Co. 34 Wis. 471. In the leading case of Railroad Co. v. Lockwood, 17 Wall. 357, 384, Mr. Justice Beadley discussed the subject with his accustomed learning and ability, and he and the whole court reached the conclusions: “ (1) That a common carrier cannot lawfully stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law; (2) that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants; (3) that these rules apply
The doctrine of that case has frequently been sanctioned by the same court. Liverpool, etc. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 441, 442, and cases there cited. There are numerous adjudications in the state courts to the same effect. Grogan v. Adams Exp. Co. 114 Pa. St. 523; Buck v. Penn. R. Co. 150 Pa. St. 170; Lindsley v. C., M. & St. P. R. Co. 36 Minn. 539; Hull v. C., M. & St. P. R. Co. 41 Minn. 510; Boehl v. C., M. & St. P. R. Co. 44 Minn. 191; Canfield v. B. & O. R. Co. 93 N. Y. 532; C., R. I. & P. R. Co. v. Witty, 32 Neb. 275; Railway Co. v. Wynn, 88 Tenn. 320; McFadden v. Mo. Pac. R. Co. 92 Mo. 343; Galt v. Adams Exp. Co. 48 Am. Rep. 742. Some of these cases
In Annas v. M. & N. R. Co., sufra, Mr. Justice Tatloe reviewed the authorities, and in effect said that this court was committed to the rules of law held in Railroad Co. v. Lockwood, 17 Wall. 357. 67 Wis. 55. The doctrine of that case seems to be in harmony with what was said in Richardson v. C. & N. R. Co. 61 Wis. 596, and Ayres v. C. & N. W. R. Co. 71 Wis. 372. Since those cases arose, and since the first was decided by this court, ch. 487, Laws of 1887, has been enacted, expressly requiring every railroad corporation. operating a road within this state to receive and carry live stock during eight months of the year, including March and April, and prescribing the conditions upon which such stock is to be so carried; and, among other things, declaring that “said railroad company transporting such cars of live stock shall feed mid water such stock as shall be unloaded under the provisions of this act at the expense of the railroad company, where such stock shall be detained by them for a longer period than six hours.” S. & B. Ann. Stats, sec. 1799a.
There are numerous decisions by courts of high authority in conflict with the cases cited, but we must hold, what we regard as the better doctrine, that, in so far as the contract in question attempted to exempt the company from liability by reason of its own negligence or the negligence
The court refused to allow the plaintiff to take judgment for the value of the horses as found by the verdict. In doing so the court gave effect to the clause of the contract wherein it was agreed that the liability of the company should not in any event exceed $100 per head. It will be observed that that amount is not named as the value of each horse, and the contract contains no stipulation nor agreement as to the value of the horses or any of them. In Hart v. Penn. R. Co. 112 U. S. 331, the plaintiff’s recovery was limited to his “ agreed valuation ” in the contract. The same was true in Graves v. L. S. & M. S. R. Co. 137 Mass. 33, where it was held “that the shipper was estopped to claim more than the agreed valuation 'of the goods.” To the same effect: Hill v. B., H. T. & W. R. Co. 144 Mass. 286; Brown v. Cunard S. S. Co. 147 Mass. 58; Alair v. N. P R. Co. 53 Minn. 160. But where, as here, there is an absence of any agreed valuation in the contract, and the limitation is merely as to the amount of recovery for damages caused by the defendant’s negligence, the case comes within the general rule to the effect that the company cannot contract for exemption, either in whole or in part, from liability for the negligence of itself or its employees. Ibid.;
It is to be remembered that the shipper and the railroad company do not contract upon equal terms. Practically the shipper is bound to submit to whatever conditions are exacted by the carrier. To be lawful, such conditions must be reasonable. A contract relieving a carrier wholly or partially from liability for damage caused by its own negligence is unreasonable. We must hold that the plaintiff was entitled to judgment for the amount of his verdict. The result is that the exceptions of the defendant are overruled, and the judgment is affirmed so far as involved in its appeal.
By the Court.— On the defendant’s appeal the judgment is affirmed; on the plaintiff’s appeal the judgment is reversed, and the cause is remanded with direction to render judgment in favor of the plaintiff and against the defendant for the full amount of the verdict as damages.