Betts v. Farmers' Loan & Trust Co.

| Wis. | Jun 15, 1866

Dixon, C. J.

The judgment is erroneous, and must be reversed.

1. The letter and telegram from Knapp, the assistant superintendent of the railroad, to Cary, the station agent at Springfield, ought not to have been received in evidence. They were instructions from a superior to an inferior agent of the company, having some relation to the affairs in controversy, but not admissions of a kind entitled to be given in evidence. Knapp, the assistant superintendent, was a stranger to the facts in dispute ; he took no part in the transaction; and knew nothing about it, and was consequently disqualified from making any admissions which would bind the company in respect to it.

2. The fourth instruction was erroneous. It appears that Taylor, the agent of the plaintiffs, who put the cattle into the cars, knew the weak and unsafe condition of the car door, and that he did not inform the station agent of the company, to whom it was unknown. Taylor fastened the door by such means as were at hand, and so that he considered it safe. If, after this, he had wished to hold the company responsible for any loss or damage which might arise from that cause, he should have notified the station agent of the unsafe condition of the door, so as to have given him an opportunity of securing it. The jury should have been so instructed.

3. The second and third instructions asked by the counsel for the company should have been given as asked. The limitation of the liability of the company relates exclusively to live , stock shipped over its road. 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 whatsoever cause happening in the course of transportation. This is a new kind of carrying, and such as was almost wholly unknown before railroads came into use. It is attended with peculiar risks and responsibilities, and it seems very reasonable that the carrier should be at liberty to contract as he pleases, without regard to the rules of the common law as formerly understood and applied in some of the cases. It is more than doubtful whether a common carrier by railroad can be compelled to receive such property at all for conveyance, unless by statute. On this account a distinction seems to be taken in several of the English cases between this and other kinds of property; and we think it is well taken. Carr v. The Lancashire and Yorkshire Railway Company, 14 Eng. Law & Eq., 340; Chippendale v. The Same, 7 id., 395; Wise v. The Great Western Railway Company, 36 id., 574; Austin v. The Manchester &c. Railway Co., 11 id., 506. In saying that we think the distinction is well taken, we mean no more than that it was competent for the company, by express contract, to limit its liability in all respects with reference to this kind of property. We-intimate no opinion as to whether it is or is not competent for a common carrier to make similar stipulations with regard to-other kinds of property, or so as to protect himself against loss or damage arising from his own negligence, or the negligence- or omissions of his agents or servants.

4. The fourth instruction asked by the counsel for the company was properly refused; because the limitation of the liability of the company to $100, except by special agreement,, applies only to horses and stock of extraordinary value. The stock in question was not of that kind.

By the Court. — Judgment reversed, and a new trial awarded-