Ayres v. Chicago & Northwestern Railway Co.
37 N.W. 432
Wis.
1888
Check Treatment
Cassoday, J.

There is no finding of any agreement on the part of the defendant to have the cars in readiness at the stations on Tuesday morning, October 17,1882. There is no testimony to support such a finding. One of the plaintiffs testified, in effect, that he told the agent that he would want the cars on the morning of the day named; that the agent took down the order, put it on his book, and said, “ All right,” he would try and get them, but that they •were short because they were then using more cars for other purposes; that nothing more tvas said. It aрpears in the case that the cars were in fact furnished. It also appears that, as the shipments were made, special written contracts therefor were entered into between the parties,' whereby it was, in effect, agreеd and understood that the plaintiffs should load, feed, water, and take care of such stock at their own expense and risk, and that they would assume all risk of injury or damage that the animals might do to themselves or each other, or which might arise by delаy of trains; that the defendants should not be liable for loss by jumping from the cars or delay of trains not caused by the defendant’s negligence. The court, in effect, charged the jury that there was no evidence of any negligence on the part of the defendant causing delay in any train after shipment, and hence that the delay of the two cars admitted to have been furnished in time was not before them for consideration. This relieves the case from all liability on contract. It also narrows the case to the defendant’s liability for the delay of two days in furnishing the five cars at the stations named, as ordered by the plaintiffs, and in the absence of any contract to do so.

*378In Richardson v. C. & N. W. R. Co. 61 Wis. 601, 18 Am. & Eng. R. Cas. 530, it was, in effect, held competent for a railroad company engaged in the business of transporting live-stock to exempt itself by express contract “from damage caused wholly or perhaps in part by the instincts, habits, propensities, wants, necessities, vices, or locomotion of such animals.” And it was then said: “ Since the action is not based upon contract, the plaintiff must recover, if at all, by reason of the defendant’s liability as a common carrier upon mere notice to furnish cars and a readiness to ship at the time notified. Did such notice and readiness to ship create such liability? "We have seen that a carrier of livestock may, to at ‍​​‌‌‌​​​​​​​​‌‌​‌‌​​‌​‌‌​​​‌​​​‌​​‌​​​‌​​‌‌‌​‌​‌‍least a certain extent, limit its liability. Whether the defendant was accustomed to so limit its liability, or to carry all live-stock tendered upon notice, without restriction, does not appear from the record. If it was accustomed to so limit, and the limitation was legal, it should at least have been so alleged, together with an offer to comply with the customary restriction. If it was accustomed to carry all live-stock offered upon notice and tender, and without restriction, then it would be difficult to see upon what ground it could discriminate against the plaintiff by refusing to do for him what it was constantly in the habit of doing for others.”

In that case there was a failure to allege any such custom or holding out on the part of the defendant, or that reasonable notice had been given to the defendant to furnish suitable cars to the person apрlying therefor, or that the same was within its power to do so; and hence the demurrer was sustained. The allegations thus wanting in that case are present in this complaint. It is, moreover, in effect admitted that the defendant was at times, when able to dо so, engaged in the transportation of live-stock over its roads, one line of which runs through the stations in question; that it was accustomed to furnish suitable cars therefor, upon *379reasonable notice, when within its power to do so; and to receive, transport, and deliver such live-stock with reasonable dispatch, but only upon special contracts at the time entered into between the shipper and the defendant, and upon such terms and conditions as should be agreed upоn in writing. It is, moreover, manifest that the defendant actually undertook to furnish the cars at the time designated by the plaintiffs; that it succeeded in furnishing two of them on time; that there was a delay of two days in furnishing the other five; and that the plaintiffs were willing to, and did, submit to thе terms and conditions’of carriage imposed by the defendant by signing the special written contracts mentioned. It must be assumed, also, that such special written contracts were substantially the same as all contracts made by the defendant at that season of the year for the shipment of similar live-stock under similar circumstances. Otherwise the defendant would be justly chargeable with unlawful discrimination; the right to do which the learned counsel for the defendant frankty disclaimed upon the argument.

We are therefore forced to the conclusion that at the time the plaintiffs applied for the cars the defendant was engaged in the business of transporting live-stock over its roads, including the line in question, and that it was accustomed tо furnish suitable cars therefor, upon reasonable notice, whenever it Avas Avithin its poAver to do so; and that it held itself out to the public generally as such carrier for hire upon such terms ‍​​‌‌‌​​​​​​​​‌‌​‌‌​​‌​‌‌​​​‌​​​‌​​‌​​​‌​​‌‌‌​‌​‌‍and conditions as were prescribed in the written contracts mentioned. These things, in our judgment, made the defendant a common carrier of lNe-stock, with such restrictions and limitations of its common-law duties and liabilities as arose from the instincts, habits, propensities, wants, necessities, Afices, or locomоtion of such animals, under the contracts of carriage. This proposition is fairly deducible from Avhat Avas said in Richardson v. C. & N. W. *380R. Co., supra, and is supported by the logic of numerous cases. North Penn. R. Co. v. Commercial Bank, 123 U. S. 727; Moulton v. St. P., M. & M. R. Co. 31 Minn. 85, 12 Am. & Eng. R. Cas. 13; Lindsley v. C., M. & St. P. R. Co. 36 Minn. 539; Evans v. F. R. Co. 111 Mass. 142; Kimball v. R. & B. R. Co. 26 Vt. 247, 62 Am. Dec. 567; Rixford v. Smith, 52 N. H. 355; Clarke v. R. & S. R. Co. 14 N. Y. 570, 67 Am. Dec. 205; South & N. A. R. Co. v. Henlein, 52 Ala. 606; Baker v. L. & N. R. Co. 10 Lea, 304, 16 Am. & Eng. R. Cas. 149; Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209; McFadden v. M. P. R. Co. 92 Mo. 343; 3 Am. & Eng. Cyclop. Law, pp. 1--10, and cases there cited. This is in harmony with the statement of Pabee, B., in the case cited by counsel for the defеndant, that “ at common law a carrier is not bound to carry for every person tendering goods of any description, hut Ms obligation is to carry according to his public profession.” Johnson v. Midland R. Co. 4 Exch. 372. Being a common carrier of live-stock for hire, with the restrictions and limitations named, and holding itself out to the public as such, the defendant is bound to furnish suitable cars for such stock, upon reasonable, notice, whenever it can do so with reasonable diligence with out jeopai’dizing its other business as such common carrier. Texas & P. R. Co. v. Nicholson, 61 Tex. 491; Chicago & A. R. Co. v. Erickson, 91 Ill. 613; Ballentine v. N. M. R. Co. 40 Mo. 491; Quinn v. W., St. L. & P. R. Co. 20 Mo. App. 453.

Whether the defendant could with such diligence so furnish upon .the notice given, was necessarily a question of fact to be determined. The plaintiffs, as such shippers, had the right to command the defendant to furnish such cars. ‍​​‌‌‌​​​​​​​​‌‌​‌‌​​‌​‌‌​​​‌​​​‌​​‌​​​‌​​‌‌‌​‌​‌‍But they had no right to insist upon or expect compliance, except upon giving reasonable notice of the time when they would be required. To be reasonable, such notice must have been sufficient to enable the defendant, with reason*381able diligence under the circumstances then existing, to' furnish the cars without interfering with рrevious orders from other shippers at the same station, or jeopardizing its business on other portions of its road. It must be remembered that the defendant has many lines of railroad scattered through several different states. Along each and all of these different lines it has stations of more or less importance. The company owes the same duty to shippers at any one station as it does to the shippers at any other station of the same business importance. The rights of all shippers applying for such cars under the same circumstances are necessarily equal. No one station, much less any one shipper, has the right to command the entire resources of the company to the exclusion or prejudice of other stations and other shippers. Most of such suitable cars must necessarily be scattered along and upon such different lines of railroad, loaded or unloaded. Many will necessarily be at the larger centers of tradе. The conditions of the market are not always the same, but are liable to fluctuations, and may be such as to create a great demand for such cars upon one or more of such lines, and very little upon others. Such cars should be distributed along the different lines of road, and the several stations on each, as near as may be in proportion to the ordinary business requirements at the time, in order that shipments may be made with reasonable celerity. The requirement of such fair and general distribution and uniform vigilance is not only mutually beneficial to producers, shippers, carriers, and purchasers, but of business and trade generally. It is the extent of such business ordinarily done on a. particular line, or at a particular stаtion, which properly measures the carrier’s obligation to furnish such transportation. But it is not. the duty of such carrier to discriminate in favor of the business of one station to the prejudice and injury of the business of another station of the same importance. *382These views are in harmony with the adjudications last cited.

The important question is. whether the burden was upon the plaintiffs to prove that the defendant might, with such reasonable diligence and without thus jeopardizing its other business, have furnished such cars at the time ordered and upon the notice given; or whether such burden was upon the defendant ‍​​‌‌‌​​​​​​​​‌‌​‌‌​​‌​‌‌​​​‌​​​‌​​‌​​​‌​​‌‌‌​‌​‌‍to prove its inability to do so. We find no direct adjudication upon the question. Ordinarily, a plaintiff alleging a fact has the burden of proving it. This rule has been applied by this court, even -where the complaint alleges a negative, if it is susceptible of proof by the plaintiff. Hepler v. State, 58 Wis. 46. But it has been held otherwise where the only proof is peculiarly within the control of the defendant. Mecklem v. Blake, 16 Wis. 102; Beckmann v. Henn, 17 Wis. 412; Noonan v. Ilsley, 21 Wis. 144; Great Western R. Co. v. Bacon, 30 Ill. 352; Brown v. Brown, 30 La. Ann. 511, Here it may hаve been possible for the plaintiffs to have proved that there were at the times and stations named, or in the vicinity, empty cars, or cars which had reached their destination and might have been emptied with reasonable diligence, but they could not know or prove, except by agents of the defendant, that any of such cars were not subject to prior orders or superior obligations. The ability of the defendant to so furnish with ordinary diligence upon the notice given, upon the principles stated was, as we think, peculiarly within the knowl'edge of the defendant and its agents, and hence the burden./ was upon it to prove its inability to do so. Where a shipper applies to the proper agency of a railroаd company engaged in the business of such common carrier of live-stock for such cars to be furnished at a time and station named, it becomes the duty of the company to inform the shipper within a reasonable time, if practicablе, whether it is unable to so furnish, and if it fails to give such notice, and has in*383duced tbe shipper to believe that the cars will be in readiness at the time and place named, and the shipper, relying upon such conduct of the carrier, is present Avith his livestоck at the time and place named, and finds no cars, there would seem to be no good reason ‍​​‌‌‌​​​​​​​​‌‌​‌‌​​‌​‌‌​​​‌​​​‌​​‌​​​‌​​‌‌‌​‌​‌‍why the company should not respond in damages. Of course, these observations do not involve the question whether a railroad company may not refrain from engaging in such business as a common carrier; nor whether, having so engaged, it may not discontinue the same.

See note to this case in 37 N. W. Eep. 433.— Eep.

The court very properly charged the jury, in effect, that if all the cars had been furnished on time, as the two Avere, it wаs reasonable to presume, in'the absence of any proof of actionab's negligence on the part of the defendant, that they would have reached Chicago at the same time the íavo did — to Avit, Thursday, October 19, 1882, a. m., Avhereas they did not arrive until Friday evening. This Avas in time, hoAvever, for the market in Chicago on Saturday, October 21, 18S2. This necessarily limited the recovery to the expense of keeping, the shrinkage, and depreciation in value from Thursday until Saturday. Chicago & A. R. Co. v. Erickson, 91 Ill. 613. The trial court, hоwever, refused to so limit the recovery, but left the jury at liberty-to include such damages doAvn to Monday, October 23, 1882. For this manifest error, and because there seems to have been a mistrial in some other respects, the judgment of the circuit court is reversed, and the cause is remanded for a neAV trial.

By the Court.— Ordered accordingly.