138 Mich. 116 | Mich. | 1904
(after stating the facts).
Upon the record now before us, there was an agreement between the Heidencamp Mirror Company and the defendant that the mirror company, from among the cars delivered to it upon its side track, might select such as it should deem fit and suitable in which to ship its glass. There is nothing in this agreement contrary to public policy. . The
If this car had been furnished at the express request of
The rule applicable in the case before us is thus stated by the text-writers:
“ Where the shipper exercises his own judgment, is not deceived or misled by the carrier, and chooses a car for the transportation of his property, the carrier is not answerable for the sufficiency of the car, for in such a' case he does not trust to the carrier, nor rely upon the duty of the carrier, but, on the contrary, freely exercises his right of choice, and relies entirely upon his own judgment, so that there is no reason for affirming that the carrier was guilty of any wrong.” 4 Elliott on Railroads, § 1480.
Hutchinson on Car. § 295 c; Chicago, etc., R. Co.v. Van Dresar, 22 Wis. 511; Ross v. Railroad Co., 49 Vt. 364; Harris v. Railroad Co., 20 N. Y. 232; 6 Cyc. 385.
“ If the shipper seizes a car which has been delivered to it loaded with sand, and, on its own account loads it with a commodity for which it is unsuitable, and damage to the goods results, the railroad company is not liable on the ground of negligently furnishing an unsuitable car.”
The learned counsel for plaintiff cite and rely upon Hunt v. Nutt, (Tex. Civ. App.) 27 S. W. 1031. They say that case is on all fours with this. The consignor in that case shipped a car load of meal. He asked for a car for the purpose. The car was furnished. It was, to all appearances, suitable. The meal was in fact damaged by some substance that smelled like creosote or “ sheep dip.” The company in that case furnished the car. Something had been previously shipped in it which caused the damage. The shipper had no choice of selection, had not agreed to inspect, and the defect was a hidden one. It is clear that the railroad company was liable.
In Pratt v. Railroad Co., 102 Mass. 557, a specific car,
“ Nothing less than a distinct agreement by the plaintiff to assume the risk would have that effect. ”
It was also said:
‘' If the plaintiffs expressly agreed to assume the risk of defective cars, rather than wait a reasonable time for other cars, they cannot recover.”
This case was affirmed by the Supreme Court of the United States. Railroad Co. v. Pratt, 22 Wall. 123.
Reversed and new trial ordered.