15 Colo. 48 | Colo. | 1890
delivered the opinion of the court.
It is stated in the complaint that appellant was a common ' carrier, and, although denied in the answer, it seems • to have been conceded at the trial that such was the capacity in which he contracted. The trial court assumed by its instructions that his liability was to be controlled by the law applicable to common carriers, and the correctness of such assumption is not challenged upon this appeal. In determining his liability, we shall therefore assume that he contracted as a common carrier, and measure his responsibility for the damage resulting from the freezing of the goods in transit by the strict rules governing such carriers, except so far as the same were modified by the special contract of the parties offered in evidence.
In reference to such special contract, the following is the substance of the testimony of H. N. Wood, one of the firm of Wood Bros., and it is not contradicted: “That in November, 1885, witness was a forwarding agent at St. Elmo; that as such forwarding agent he received from the Union Pacific Railroad Company at St. Elmo a lot of goods marked ‘ Nursery Stock, etc.,’ consigned to H. A. Parcells
The bill of lading introduced in evidence reads as follows :
“No.-. St. Elmo, November 2d, 1885.
“ Way-bill of goods forwarded by Woods Bros., by James Carr, freighter to Aspen, Colorado.
“ If this consignment is delivered in Aspen by the evening of November 4, 1885, the freighter shall be paid $10 extra above the regular freight. It is further agreed that the said freighter shall not expose his load on either range over night, and take the best possible care of same.
“ Beceived the above goods in good order and .condition, which I agree to deliver to consignee in same order and condition.
“ [Freighter’s signature.]
“ James Carr, per Mo.”
This was duly signed for Carr, and accepted by the forwarders for appellees. It constitutes the only written evidence of the contract between the parties, and must be taken as the only contract for the transportation of the
The measure of the liability of appellant must be determined by the written contract. By the terms of this instrument he expressly acknowledges the receipt of the property in good order, and expressly agrees to deliver it in the same condition. This is the customary contract of a common carrier. There is no agreement to deliver the property in Aspen by November 5th, although it does contain a stipulation by the consignee to pay $10 additional if the property should be delivered in Aspen by the evening of November 4th. It is also agreed that the property shall not be exposed on either range over night, and that the freighter will take the best possible care of the same. It is further provided that the property shall he carried at the owner’s risk of freezing. It is, in fact, the ordinary common carrier’s contract, loss by freezing excepted, and an agreement that the property should not be exposed to the severity of the ^weather which might prevail at the summit of the mountains to he crossed. But there was no agreement that the property should be delivered at its destination by the 5th day of November, as alleged in the complaint; and the submission to the jury of the question whether there was such an agreement was error. As we have seen, the liability of appellant was fixed by the written contract, and by that alone.
The evidence shows that this was appellant’s first experience in freighting over the road between St. Elmo and Aspen; that his teams had just arrived in that section of the state, as Parcells well knew, and that Parcells examined the wagons before contracting with him, rejecting some and ..selecting others as suitable for the work. Under the cir.cumstances, he alone was responsible for the character of the wagons employed, and is estopped from claiming that .they were not suited to the business. And the testimony introduced by appellee tending to show that the convey
The ruling of the trial court does not, as supposed by counsel, find support in anything which was said in the case of Transportation Co. v. Cornforth, 3 Colo. 280. The facts in the two cases are totally dissimilar. The selection of the car in which the goods were transported in that case was left entirely with the carrier. It was shown that it was customary to use refrigerator cars for the transportation of fruits in the winter season from New York, the place of shipment, to Denver, the place of destination, while the carrier in that instance used an ordinary box-car, with apertures through which the cold and snow entered. The evidence showed that the injury resulted from the gross negligence of the carrier; and the court held that public policy would not permit the carrier by special agreement to be relieved from damages occasioned by negligence or misfeasance in him or his servants. In that case the cars were selected by the carrier; in the case at bar the wagons were selected by the shipper and pronounced by him “ just the thing.” In addition to this, it would be unreasonable to measure the duty of an ordinary freighter in providing vehicles for the transportation of perishable goods with that of a company contracting for transportation across the continent by rail.
As we have seen, the goods were shipped at the owner’s risk of freezing. This does not, however, relieve the carrier from loss resulting from his own negligence. The law will not permit a common carrier to contract against liability for his own negligence or that of his servants and employees. Transportation Co. v. Cornforth, supra; School Dist. etc. v. Railroad Co. 102 Mass. 552; Railway Co. v. Wilcox, 84 Ill. 239; Railroad Co. v. McCloskey, 23 Pa. St. 526.
Whether or not the loss complained of yas occasioned by
Reversed.