12 Kan. 324 | Kan. | 1874
This case brings up for review the decision of the district court sustaining a demurrer to the reply. The plaintiff in error sued defendant in error, alleging that he had sustained damages through the carelessness and negligence of the defendant in the transportation of cattle over its *road. The company in its answer sets up a written contract of shipment, signed by both parties, by which the cattle were to be carried from Ogden to the state line, at special rates per car load, to be accompanied by the owner, and fed, watered, and cared for by him, in consideration of the special reduced rates. The contract stipulates that the company shall not be liable for loss by animals injuring themselves, or each other, or by jumping from the cars, delay of trains, or other damage, “except such as may result from the actual negligence of the company or its agents.” There is also a stipulation that “no claim for loss or damage on live stock will be allowed, unless the same is made in writing before or at the time the stock is unloaded.” The answer states further that the plaintiff accompanied the cattle, supervising and observing his stock, and was well aware of their condition when delivered, knew whether they had sustained injury or not when they were unloaded, yet did not then, nor for more than a year thereafter, make any demand in writing for damage sustained. The
If the defense set up in the answer is a good one, then the reply does not avoid it. It is no excuse for not performing a contract that it was signed under protest. The plaintiff had his option to have his cattle transported at the usual rates, and hold the company responsible as a common carrier, or at special rates on lower terms, and with less responsibility on the part of the carrier. He chose the latter, and cannot now avoid his contract by saying he signed under protest. Neither *is the reason given for not giving the written notice sufficient. If the contract stipulation as to written notice is valid, then the inability to procure writing materials at the instant of the unloading of the cattle is no excuse for not giving notice for more than a year afterwards. If the stipulation is not valid, then no notice was necessary. This presents the real question in the case. The stipulation as to notice contravenes n,o statute. The parties w'ere competent to make the contract, and did make it, and it must be held good unless it is contrary to public policy. How far a common carrier may limit his responsibility by special contract is not involved in this case, for the pleadings do not raise that issue. It is undoubtedly settled that the common carrier may relieve himself from the strict liability imposed on him by the common law, by special contract; but it seems that he cannot relieve himself from liability for his own negligence. The contract pleaded does not pretend to relieve the defendant for the consequences of his own negligence. It ■only stipulates that the shipper shall on his part perform certain duties. The reasons for this clause are set out in the answer, as follows : The defendant was engaged in transporting great numbers of cattle over its road, which were shipped further to market, or so commingled with other stock that it would be impossible to distinguish one car load from another, unless, attention was called to them immediately; and the object of the notice was to relieve the company from false and fictitious claims, by having an inspection of the cattle before they were removed or mingled with other cattle, and proper damages ascertained and allowed, — of which reasons the plaintiff had full knowledge, and still chose to ship at reduced special rates. The reasons are cogent, and we are unable to see how it contravenes public policy that a special contract at reduced rates should stipulate that reasonable notice of injury should be given. We are un
The judgment is affirmed.
