118 Ky. 115 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
The appellees, Sanders & Russell, shipped 265 hogs in four live stock cars over defendant’s road from Burgin, Ky., to the Cincinnati Stockyards. The train of which these cars formed a part left Burgin on the morning of July 2d at 2:45 a. m., and reached the Cincinnati Stockyards, the point of destination, in the afternoon of that day at 4:15 p. m., having been on the road about thirteen and one-half hours. The hogs were in good condition when they left Burgin. When they arrived at their destination fifteen of them were dead, and the remaining two hundred and fifty had lost in shrinkage, over and above: the usual loss of flesh incident to the journey, about seven hundred and fifty pounds whilst en route. On the thirteenth of September, 1902, Sanders & Russell brought this suit against the railroad company seeking to recover $313.95, the pecuniary loss resulting from the.shipment to them, which they allege was chargeable to the defendant’s negligence in failing to give proper care and attention to the hogs whilst in its custody, and to. the unnecessary and unusual delay in delivering them at. their point of destination. The answer of the defendant is 'in two paragraphs. In the first it denied that the plaintiff’s loss was attributable to any lack of care or attention on its part to the hogs while in transit, or that the delay in their transportation from. Burgin to Cincinnati was unusual or unnecessary. In the second it alleges that the bill of lading under which the hogs were shipped provided that the plaintiffs should unload, feed, water, and attend to the hogs at their own expense and risk whilst in transit; and that the company should not be liable for any injury to them arising from heat, suffocation,
There is little conflict in the testimony. It was shown that the train: reached Lexington at 4:30 a. m., and was delayed at that point 1 hour and 20 minutes; that it was delayed 40 minutes' at Williamsburg, and 1 hour at Shear-man, reaching Ludlow at 1:39 p. m., and that it took until 4:15 p. m., for it to arrive at the Union Stockyards, the point of destination. The testimony of the plaintiffs: is uncontradieted that the usual time required is only about six or seven hours to make the run on this train from Burgin to the stockyards, and that it generally arrives there somewhere between 8 and 10 o’clock in the morning. There is no denial either in the pleading or proof as to the extent of the alleged losses. Nor was there any claim by the railway company that they gave any special attention to the hogs whilst in their possession. It was also shown that neither of the plaintiffs nor any representative of theirs was on the
Considerations of public policy have imposed extraordinary liabilities upon carriers. They are generally held liable as insurers of the safety of goods committed to their care, with the exception of, first, those arising from what isi known as the act of God; second, those caused by the public enemy; third, those arising from the act of the shipper; fourth, those arising from the inherent nature of the goods shipped. Appellant insists that the losses to appellee resulting from the death and loss of weight in his hogs was attributable to their inherent inability to successfully withstand the hot weather which prevailed during the time of' their shipment, and not from any negligence or lack of attention on their part. If this is admitted, yet appellant knew the nature of the stock which they assumed to transport, and that the delays in their trains, however excusable in themselves, increased the risk in carrying the hogs through with safety, and to that extent increased their obligation to give them every attention necessary to avoid loss, and to carry them to their destination without unnecessary or unavoidable delay. While at common law carriers could limit their liability for loss or injury to goods committed to their care resulting from many causes, they were never permitted to contract for 'exemptions from liability attributable to their own negligence. In 6 Cyc., 392, the rule is laid down as follows: “Where the express language or evident purpose of the stipulation relieving the carrier from common law liability is to exempt him from liability for his own negligence or that of his servants or agent, the stipulation is against public policy, and is therefore, void, and of no effect.” And by section 196 of the Constitution of Kentucky they-are prohibited from contracting for relief from any liability imposed upon
The extraordinary delay in transporting! the hogs is not satisfactorily accounted for, and the court in this case made the liability of the appellant depend' upon the question of their negligence, and the jury have found a verdict for the appellee. We perceive no ground® for disturbing it.
Judgment affirmed.
