Baltimore & Ohio Railroad v. Brady

32 Md. 333 | Md. | 1870

Brent, J.,

delivered the opinion of the Court.

There is no doubt that a common carrier, by an express contract with his employer, may limit his ordinary responsibilities. Where indemnity from loss is claimed by virtue of such a contract, the burden of proof to establish it is upon the carrier.

In this case, a special contract was attempted to be set up by showing, that the appellee paid for the transportation of his stock at a tariff of charges under which, by the printed table, the company assumed no responsibility for loss, damage or delay of stock. This alone was not sufficient. It was necessary to show that the owner of the cattle had notice' or actual knowledge of these terms at the time or before the delivery of the stock by him to the company, to be transported, and that they were assented to on his part. 2 Redfield on R. W., 80. This was the only question in the case. It was one of fact for the jury upon all the evidence, and was properly submitted to them.

(Decided 10th March, 1870.)

There was no written contract offered which the Court was called upon to construe, and although the appellee may have paid the special rates, it docs not follow, as a conclusion of law, that he had notice of the terms upon which they were charged, or that he assented to the same. The weight of testimony is against any such conclusion. The evidence offered by the company shows that really no contract was entered into by the appellee to limit their responsibility as a common carrier. Where the special rates were accepted, releases were to be given. In this case, no release was given by the owner of the cattle, and according to the company’s own terms, a contract was never consummated between the parties. Their own evidence also rebuts the presumption of any contract growing out of the charge of the special rates. The cattle were placed on the cars at Brady’s Mills, and the charges made for their transportation were fixed at the company’s office in Baltimore city, after the accident and loss occurred, upon which this action is founded.

In looking at the whole case, the appellant has nothing to complain of in the instructions and prayers which were granted by the Court below. The prayers of the appellee, which were granted, properly state the law of the case. And in the fourth prayer of the appellant, the case is most favorably submitted to the jury upon the law, and the whole question of the existence of any special contract left to be passed upon by them on the whole evidence in the case.

Seeing no error in the rulings of the Court below, the judgment will be affirmed.

Judgment affirmed.