178 Wis. 286 | Wis. | 1922
The following opinion was filed July 8, 1922:
The plaintiff and his agent were given free transportation for the express purposes of caring for the horses'and relieving the carrier of some of the duties which would otherwise have rested upon it. It is true this did not relieve the company from the obligation to use reasonable care. But it was competent for the parties to malee the stipulation that plaintiff would see that all doors and openings were so fastened and closed as to prevent the escape of the animals or injury to them, and it is clear from the
He was an experienced shipper and had been engaged in shipping horses over the same route for about five years, and of course knew, or ought to have known, the proper and usual mode of fastening the doors in the cars used for shipment. He testified that he paid no attention to the manner in which the doors were locked; that it was none of his business; and that he did not look at the doors on the route until he was told that there was some noise in the car.
It is argued by plaintiff’s counsel that when noise was heard in the car it was the duty of the conductor to hold the train until the doors could be opened and an examination made. Plaintiff testified that it was not uncommon to hear noises in a car. Although he was informed of the noise he made no request that the train be held. The testimony was that in the shipment of horses, if there was any trouble the train was always held, if so requested, until there was a thorough inspection and the difficulty-remedied.
A large number of horses cannot be transported several hundred miles in a railroad car without considerable danger of injury to some of them. They are likely to be frightened by the rapid movement of the train, the noises and other unusual conditions to which they are subjected, and in their fright to suffer, injuries which cannot be foreseen. Under such circumstances it is reasonable that there should be some limitations on liability. There is no doubt but the company had the right to contract that it should not be liable for injuries caused only by the propensities of the animals themselves. Betts v. Farmers’ L. & T. Co. 21 Wis. 80. See note, Am. & Eng. Ann. Cas. 1913D, 972. Indeed it has often been held that no contract limiting liability is necessary in such cases to protect the carrier. Boehl v. C., M. & St. P. R. Co. 44 Minn. 191, 46 N. W. 332; 1 Hutchinson, Carriers (3d ed.) secs. 335, 336, and cases cited.
There was no presumption of negligence on the part of the defendant for the reason, if no other, that the stock was not at any time in the exclusive charge of the carrier. Where the shipper accompanies the stock and has. the same means of knowledge as the carrier of the condition of the stock, or better means of knowledge, the burden rests upon him to prove the negligence causing the injury, and if his own negligence has contributed he cannot recover. Zimmerman v. N. P. R. Co. 140 Minn. 212, 167 N. W. 546; McManus v. C. G. W. R. Co. 138 Iowa, 150, 115 N. W. 919; 5 Thompson, Comm. on Neg. (2d ed.) § 6586 and cases cited.
In the instant case there was no unnecessary delay in transporting the stock. There., was no proof of any collision or violent switching which could have contributed to the injury. If there was any negligence in the manner in which the doors were fastened, or in which the fastenings were maintained on the journey, the plaintiff was at least equally negligent with the defendant.
There is another very serious obstacle to a recovery in this case. The mere fact that the horse died on the route or that it 'was killed by the other horses does not create liability on the part of the carrier under the circumstances ’ of this case. There was no sufficient proof that the horse was knocked down and trampled to death by the other horses, or that if the plaintiff had been able to open the door in question at Manitowoc or Sheboygan he could have saved the animal. The questions when,
“Under the state of the evidence the plaintiff has not established with reasonable distinctness that defendant’s negligence was the proximate cause of the injuries complained of. The evidence leaves an answer to this question in the realms of conjecture, and the jury’s findings upon the subject are not supported by facts warranting such inference with any reasonable certainty.”
Verdicts must have a more substantial basis than mere speculation or. conjecture. Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Klein v. Beeten, 169 Wis. 385, 172 N. W. 736; Application of Gehrke, 176 Wis. 452, 186 N. W. 1020; Matuschka v. Murphy, 173 Wis. 484, 180 N. W. 821; Musbach v. Wis. C. Co. 108 Wis. 57, 84 N. W. 36; Quass v. Milwaukee G. L. Co. 168 Wis. 575, 170 N. W. 942.
The claim is made by plaintiff’s counsel that the provisions in the shipping contract as to limiting liability are all inoperative since the passage of the Carmack and Cummins amendments to the Interstate Commerce Act (38 U. S. Stats, at Large, 1196, 1197, ch. 176, and 39 U. S. Stats, at Large, 441, ch. 301). It was clearly not the purpose of these statutes to- malee common' carriers absolute insurers. In construing the Carmack amendment Mr. Justice Lurton said:
“The suggestion that an absolute liability exists for every loss, damage, or injury, from any and every cause, would be to make such a carrier an absolute insurer and liable for unavoidable loss or damage though due to uncontrollable forces. That this was the intent of Congress is not conceivable. To give such emphasis to the words ‘any loss or damage’ would be to ignore the qualifying words ‘caused by it.’ The liability thus imposed is limited*293 to ‘any loss, injury, or damage caused by it or a succeeding carrier to whom the property may be delivered,’ and plainly implies a liability for some default in its common-law duty as a common carrier.” Adams Exp. Co. v. Croninger, 226 U. S. 491, 506, 33 Sup. Ct. 148.
The object of the legislation was to supersede the special regulations and policies of particular states upon the subject of the carriers’ liability to shippers for loss or damage to interstate shipments, and the contracts of carriers with respect thereto.
There are many federal decisions construing these acts. Most of them relate to the amount of the liability or to the question of liability as between the shipper and the initial and connecting carriers. None of them holds that the carrier is absolutely liable for every loss.
By the Court. — Judgment reversed.
On October 10, 1922, the mandate of this court was amended to read as follows:
Judgment reversed, with costs, and cause remanded with directions to dismiss plaintiff’s complaint upon the merits.