Hawkins v. Great Western R. R.

| Mich. | Apr 28, 1868

Campbell J.

Plaintiff shipped, certain horses over the railway of the defendants, under a contract which provided that the owners took all risks of loss, injury, damage, and other contingencies “in loading, unloading, conveyance, and otherwise, whether arising from the negligence, default, or misconduct, gross or culpable, or otherwise, on the ptirt of the railway company’s servants, agents, or officers.” The contract contained a further provision that, when free passes were given to persons in charge of animals, or to their owners or consignees, the company should not be responsible for any negligence, default, or misconduct, gross, culpable, or otherwise, on the part of the company or their servants, or of any other person or persons, causing or tending to cause the injury or detention of the animals.

The injury in this case occurred by reason of the bottom of the carriage giving way. Whether this was caused by a defect in the carriage, or by reason of some other neglect or fault in the course of the transit, does not disiinctly appeal’, as the court below found that the company was not liable at all under this agreement. But, from the course of the argument, we infer that defective cars caused the damage.

In Shaw v. The York and North Midland Railway Co. 13 Q. B. 347, under a contract Avhich exempted the carrier from liability “for any injury or damage (however caused),” the court intimated a doubt whether the plaintiff might not have alleged a duty to furnish proper and sufficient carriages, and that the loss happened from a breach of that duly, notwithstanding-the terms of the contract, Avhich Avere fully as broad as those in the present case.

Unless some shoAving Avas made that the plaintiffs, with proper opportunities of observation and Avith notice of their actual condition, assented to the use of the cars on which their horses Avere shipped, Ave think they Avere entitled to expect that reasonably proper cars would be furnished. While there is in one clause of the contract an exception of eArery default, the fair inference is, that this language Avas used as referring to defaults in the particulars specified in the previous articles, Adz: “loading, unloading, conveyance, and otherwise,” and in matters of a like kind. The rule is usually applicable, that Avhere no intention to the contrary appears, general Avords used after specific terms are to be confined to things ejusdem generis with the things previously specified.— American Transportation Co. v. Moore, 5 Mich. S68. We think it Avould not occur to any one executing such a contract, that it had reference to any risks except such as Avere likely to arise from the nature of the freight, from delays, and from casualties and defaults occurring during the loading, transportation and unloading and delivery. It would not lead him to contemplate risks not incident to the ordinary transaction of business, and arising from negligence in no way likely to be incurred by a company using ordinary care in the management of its affairs. He would fairly be led to assume that the company, possessing the usual facilities for the carrying trade, of which cars are the first and indispensable means, merely sought exemption from risks incurred in the employment of those means.

If the cars in question were unfit for the purpose to which they were applied, and if that unfitness iras of such a character as to imply fault in the company or their agents for allowing them to be used, we think they are responsible for the damages which accrued from their use. As the case shows, there was evidence tending to show neg.ligence, and as the negligence' may have consisted, and is assumed to have been, in the use of unfit cars, the case should have gone to the jury upon this point.

The judgment should be reversed, and a new trial granted.

Cooley Ch. J. and Graves J. concurred. Christiancy J. did not sit.