22 Colo. App. 1 | Colo. Ct. App. | 1912
delivered the opinion of the court.
Appellees as plaintiffs helow brought suit against appellant alleging that on the 29th day of October, 1906, plaintiffs, the owners of 1,260 head of sheep, shipped said stock from Chama, New Mexico, over the road of The Denver and Bio Grande Railroad Company to Denver, Colorado, consigned to themeselves, and that these sheep, together with the way bills, were delivered to the defendant company at Denver on November 1st, 1906; that plaintiffs then and there requested defendant to forward said stock without delay to Giddings, a station on defendant’s railroad near Fort Collins; that defendant accepted the way bills, took the sheep into its possession, and agreed to make the shipment as requested ; that defendant failed to make prompt shipment, and kept the sheep in muddy, filthy and insufficient pens, with inadequate facilities for feeding, where the feed was trodden underfoot and wasted, so that the sheep received no benefit therefrom, and in which they were exposed to inclement weather, by reason of which 160 sheep, of the value of-$424, died, and the rest shrank in weight, and deteriorated in value to the amount of $125. Other damage was alleged but withdrawn from the jury.
Defendant pleaded (1) a general denial; (2) that the sheep were shipped to Denver, and there delivered to The Denver Union Stock Yard Company by which they were retained until November 4th, when they were received and loaded by the defendant, and shipped to Fort Collins; that the said
The reply, after - denying other affirmative allegations of the answer, admitted the execution of the contract, but denied that the claim of plaintiffs in this case is controlled by said agreement, and sought to avoid the conditions set forth in the 13th, 15th and 21st paragraphs of said contract, by alleging that the written notice of loss required by paragraph 13, was given as soon as possible after learning the extent of the damage; that suit was begun within ninety days after the happening of the injury, as required by paragraph 15, and denying the waiver or release provided for in paragraph 21. Paragraphs 13 and 21 of said contract are as follows :
“13. All claims for loss or damage from any source shall be presented to the carrier within ten days ■ from the date of the. unloading of said stock at destination, and before said stock has been mingled with other stock; otherwise, such claims shall be deemed to be waived, and the carriers shall be discharged from liability.- Any carrier liable on*5 account of loss or damage to any of said stock, shall have the benefit of any insurance thereon.”
“21. As a further consideration for the reduced rate herein given, the shipper hereby releases and waives any and all causes of action for damages, or otherwise, by reason of any written or verbal contract for the shipment of said cattle, or any of them, prior to the execution hereof.”
The cause was tried to a jury upon instructions given by the court which practically eliminated the written contract from consideration, and denied its applicability to the cause of action, and placed the obligation, duty and liability of the defendant as at common law — that of practical insurer of the freight, after it was received and accepted by the defendant as a common carrier; and charged that in case the jury found that upon the day following the arrival of the sheep in Denver, the agent of The Denver and Bio Grande Railroad Company delivered to the defendant company the bills of lading of said sheep, and that the sheep were accepted by the defendant at the stockyards for shipment, and were at that time ready for shipment, the defendant must, in law, be deemed to have accepted and received the sheep on the day it received the way bills or bills of lading from The Denver and Bio Grande Bail-road Company; and further, in effect, that failure of plaintiffs to present claim for loss or damage within ten days from the unloading of the stock at its destination, as required by said paragraph 13, would not bar plaintiffs’ claim if the same was presented within a reasonable time after the amount of the loss had been ascertained, in case the jury should further find -that the lapse of time did not
The grounds of error relied on in the briefs of counsel for appellant are as follows: 1. Appellees were not entitled to have the cause as made submitted to the jury, for the reason; (a) that appellant was not responsible nor liable for the condition of the stockyards; (b) appellees were precluded from asserting their claim, because made too late. 2. The court erred in the instructions given, namely, instructions 2, 3 and 4. 3. The court erred in refusing to give instructions requested by appellant. 4. The motion for a new trial was erroneously overruled.
The principal evidence upon the questions herein to be considered was given by F. F. Breniman, brother of one of the plaintiffs, who accompanied the shipment, and by T. J. Burns, agent at the union stockyards for the defendant company. The shipping contract between The Denver and Bio Grande Railroad Company, initial carrier, and the plaintiffs, was not in evidence. Breniman testified that the sheep were billed over the Denver and Bio Grande railroad from Chama, New Mexico, to Fort Collins, Colorado; that they arrived in Denver about eight o ’clock on the evening of October 31st; that he went to the office of the initial carrier to see if the sheep could be sent on immediately to Fort Collins, and was told by the agent of that company that they would be turned over to the defendant company; that said agent notified the defendant’s agent, who declined to receive the sheep that evening on board cars; (the reason, as admitted by counsel for both plaintiffs and defendant, being that the sheep
Burns, defendant's agent, could not remember
1. In this state railroad companies are common carriers of live stock. — Railway Co. v. Rainey, 19 Colo., 225. “The general rule maintained by all the authorities is that carriers of live stock are liable absolutely for loss of or injury to stock intrusted to them for transportation, like other common carriers, unless the loss or injuries were occasioned by the act of God, or the public enemy, or the negligence of the shipper, except that they are not liable for loss or injury caused by the “proper vice” or natural propensities of the animals themselves, and not by any negligence on the part of the carriers.” — Moore on Carriers, p. 509; Railway Co. v. Rainey, supra. But, the authorities are uniform in holding that the carrier is not responsible, in that capacity, for goods, until they have been delivered to the carrier for immediate shipment, in condition for transportation, and requiring nothing further to be done by, and no further orders from, the consignor, and the goods have been so accepted by the carrier. — Elliot on Railroads, sec. 1409, 2nd ed.; Hutchinson on Carriers, sec. 113, 3rd ed.; Moore on Carriers, p. 133; 6 Cyc., p. 614. To effect such a delivery to the carrier there must be, either actually, or in legal effect, a complete surrender to it of possession and custody, and as a consequence, all control over the goods must be abandoned by the owner until the purpose of the bailment has been accomplished; and, until this has been done, it cannot be
“When the shipper surrenders the entire custody of his goods to the carrier for immediate transportation, and the carrier so accepts them, so instanti the liability of the common carrier commences. WThen this occurs the delivery is complete, and it matters not how long, or for what cause, the carrier may delay putting the goods in transitu; if a loss is sustained, not occasioned by the act of Grod, or the public enemy, the carrier is responsible. But, on the contrary, as there is no divided duty of safe keeping, and no apportionment, in the event of loss, between the owner and the carrier, the surrender of control over the goods by the shipper must be such as to give the carrier the unqualified right to put at once in itinere, and the carrier must have accepted them for that purpose.”
And also in Elliott on Railroads, sec. 1409, as follows:
*11 “Railroad companies are held to the liability of warehousemen, not to that of common carriers, for goods deposited with them otherwise than for immediate shipment. Thus, if the shipment is not to begin until further orders from the consignor, or something, has been done by him, the carrier’s liability attaches the instant, but not before, the orders have been given, or the something has been done. If, however, the delay in shipment is due, not to the request or default of the consignor, hut to the exigencies of the railroad company’s business or to its default, the carrier’s liability usually dates from the deposit and not from the commencement of the journey. Thus, where goods hearing the consignee’s name and address are delivered to a railroad company, without agreement to the contrary, the delivery is equivalent to an express order to ship immediately; and the fact that the consignee consents that they may wait in the freight house because the company has no car ready, will not relieve it from liability as an insurer. ’ ’
It has been held that whether freight has been delivered to a common carrier so as to fix its liability as such, is a mixed question of law and fact, and delivery may be shown by proving that the freight was sent to the place where the carrier was accustomed to receiving it, and that notice was duly given that it was there for transportation. — Elliott on Railroads, sec. 1413. And, that the liability of a common carrier begins with the actual delivery to it, or with such notification as, under the usages of business, constitutes a constructive delivery. — Id., secs. 1443, 1412. And when the owner of the goods has done all in his power, and all that he is required
A railroad company, as a carrier of live stock, is obliged to provide suitable and necessary means and facilities, such as good and sufficient stock pens and yards for receiving, loading and unloading live stock offered it for shipment, and for its delivery to the consignee, and for stock unloaded en route to be fed, or on account of delay, and is liable for damages caused to said stock by reason of the carrier’s failure to provide such facilities. — Moore on Carriers, p. 500; Covington Stock Yards Co. v. Keith, 139 U. S., 128; International etc. R. Co. v. McRae, 82 Tex., 614; Feinberg v. Delaware etc. R. Co., 45 Am. & Eng. R. Cas., 348; Hutchinson on Carriers, secs. 634, 638, 3rd ed.
II. Counsel for appellant in their brief say:
“If there are cases in the books involving identically the same questions as are involved in the case at bar, we have been unable to find them.” The
III. Plaintiffs’ right to a recovery cannot be determined by the provisions of the limited liability contract, for the reason that the contract was not entered into, nor mentioned, until the fourth day of November, whereas, the alleged acts or default of defendant by which the injuries complained of were caused, occurred between the morning of November 1st and the afternoon of November 4th when the contract was signed, and there is nothing to show that the contract was, or was intended to be, retrospective in its effect, unless it be paragraph 21, which is ineffective under the circumstances. Instruction No. 2, upon the question of notice, seems to have been a partial recognition by the court of some effect to be given to the written contract.. But, if the giving of that instruction was error, such error was in favor of the defendant. It would be unreasonable to hold that paragraph 13 of the contract had in contemplation notice to be given of loss or damage sustained prior to the time the contract was signed. The provisions of paragraph 21, waiving and releasing all causes of action under any prior verbal or written contract, upon respectable authority, were void. The supreme court of Arkansas in Missouri & N. A. R. Co. v. Sneed, 85 Ark., 293, held that it was not error in the trial court to exclude from the jury that clause of the contract which required plaintiff to give notice of damage before removal of the stock, where, as in the present case, the damage had already occurred when the contract was executed; that where the damage to the stock occurred before the contract was entered into, such
Excluding the written contract, the vital question became one of fact, namely: Were the sheep delivered to and accepted by the defendant on the first day of November for immediate shipment? If they were so received, the shortage of cars, as well as the relations thereafter existing between the stockyard company and the defendant, were immaterial, as the defendant was then charged with custody and care of the stock, and was liable for any damage thereto not within the exceptions hereinbefore noted. The question of delivery and acceptance was submitted to the jury upon what appear to be appropriate instructions; and, we cannot say that the evidence introduced, viewed in its most favorable light to plaintiffs, was insufficient to justify a finding in their favor. Therefore, the verdict of the jury in that respect is binding upon this court.
IV. After verdict, application was made by the defendant for a new trial, on the ground of newly discovered evidence, claiming that the written contract of shipment under which the sheep were hauled by The Denver and Rio Grande Railroad Company from Chama, New Mexico, to Denver, did not re
The record being free from substantial error, the judgment will be affirmed.
Affirmed.