211 Pa. 267 | Pa. | 1905
Opinion by
It was the duty of the defendant company not only to carry the plaintiffs’ horses to the terminus of its road at Jersey City, but also to deliver them at that point to the connecting carrier in a car properly constructed and suitable for the purpose of transporting them to their final destination. The failure to perform this duty is the basis of this action. The plaintiffs allege, and the jury has found, that the defendant company removed the horses from the Burton car at Jersey City and placed them in a car not arranged and fitted but utterly unsuitable for the safe carriage of the horses. This was a clear violation of the carrier’s common law duty, and the jury having found that this act of the defendant company resulted in the injury to the horses, the company’s liability necessarily followed. The fact that the person employed by the shippers to accompany the stock was present when the horses were transferred to an unfit car and assisted in making the change, did not relieve the company from the duty to furnish a suitable car. This person’s duty, as provided in the contract, required him to load and to unload the stock, to feed, water and care for it while in transit. He had no authority to select or furnish the car to which the
The defendant is not, under the facts of this case, in a position to insist upon the failure of the plaintiffs to deliver to it a verified written claim of their loss within five days from the time the horses were removed from the car at their destination. The horses were shipped from Reading, Pa., on Wednesday, June 11, 1902, and arrived at the freight station of the connecting carrier at Readville, their destination, about seven-thirty o’clock on Saturday evening, June 14. They were in bad condition, and Mr. Cummings, one of the plaintiffs, refused to receive them until he was directed by the railroad agent at that point to remove them from the car and to hand in his bill for damages. Cummings immediately wired Eckert, joint owner of the stock, at Reading, the condition of the horses. On the following Monday, as Mr. Eckert testifies, he communicated with Mr. Fraim, the defendant company’s freight agent at Reading, who had acted for the company in shipping the horses, “ and told him that our horses had met with an accident and we would hold the company responsible.” Fraim replied that “ he would report it to the proper authorities and let me know.” On Wednesday, June 18, Mr. Fraim wrote the defendant’s claim agent at Philadelphia, advising him of the change of cars, of the detention of the stock at Jersey City, of the injured condition of the horses, and that the plain
It is true, as we have held, that a carrier may insert in its contract to transport live stock, a provision requiring notice of a claim for damages within a stipulated time, and such a provision is reasonable and will be enforced. But, as said in Pavitt v. Lehigh Valley R. R. Co., 153 Pa. 302: “It (the provision for notice of claim) is proper, because the demand promptly made gives warning and enables the carrier, while evidence is attainable and recollection is clear, to institute inquiry into the merits of the claim, and thus guard against fraud and overvaluation.” The purpose of the provision, therefore, and the reason for its enforcement by the court, is to enable the carrier to make a prompt investigation of the merits of the claim and thereby protect itself against imposition by the shipper. Being for the protection of the carrier, the latter may waive its right to enforce the provision.
It is settled, as the authorities cited by the trial judge show, that for negligence by a common carrier in transporting goods intrusted to it, the shipper may, at his election, bring either an action ex contractu or an action ex delicto. It is also unquestionably the law of this state, as declared in numerous decisions of this court, that a common carrier cannot by contract limit its liability for the negligence of itself or its servants.
The able and exhaustive opinion of the learned trial judge, overruling the defendant’s motion for judgment non obstante veredicto and for a new trial, in which he considers all the questions raised on this appeal, renders any further consideration of the assignments of error unnecessary.
The judgment is affirmed.