170 Mass. 44 | Mass. | 1897
The finding of the jury that no contract in writing between the parties was signed at the time of shipping the cattle renders immaterial all the requests for rulings made, and the rulings given on the assumption of the existence of such a contract.
The judge rightly refused to give the instruction that, if the
' The only remaining requests and instructions material to be considered relate to the rights of the parties at common law, as modified by the Pub. Sts. c. 207, § 55, and the orders of the cattle commissioners under the St. of 1894, c. 491, and the acts amendatory thereof.
The judge could not properly rule as requested that, if failure to comply with this statute is evidence of negligence, it is evidence of negligence on the part of the plaintiff, as well as on the part of the defendant. The statute makes the duty to unload and feed the animals absolute on the part of the railroad company, whether the owner or some other custodian upon whom the duty rests primarily is in charge of them or not. In the present case, whether the plaintiff was in such a relation to the business of carrying the cattle as to be affected by the statute was a question of fact for the jury.
There was evidence which tended to show that the defendant had violated this statute, and there was also evidence which made it a question of fact for the jury whether the defendant did not neglect its duty at common law in regard to the confinement of the cattle without rest, food, or water. See Brockway v. American Express Co., ubi supra.
The instructions given on other parts of the case were correct and sufficient. We do not deem it necessary to consider in detail any other of the numerous requests for rulings presented by the defendant at the trial.
Most of the exceptions to the admission and exclusion of evidence are covered by the general doctrines above stated. It was proper to show the general course of business of the defendant in shipping cattle received from the New York Central, and Hudson River Railroad as bearing upon the questions whether the defendant was negligent, arid whether the plaintiff was in the exercise of due care. Proof that the cattle were in good condition when they were shipped was competent, in connection with the other evidence in the case.
The answer of the train despatcher at Albany to the plaintiff’s inquiry about the missing car was competent as bearing on the question whether the plaintiff was negligent.
The questions in regard to the time of signing the contract and what was said in connection with the signing were competent for reasons already given.
. Whether the plaintiff had trouble with the defendant about another transaction was immaterial.
Exceptions overruled.
These orders provided, in substance, that animals in transit, or neat cattle brought from without the limits of the Commonwealth, should not be unloaded therein for any purpose whatsoever, except in case of accident, at any place other than a quarantine station designated, or upon a written permit signed, by the cattle commissioners ; and certain places in Brighton, Watertown, and Somerville were designated as such quarantine stations.
The evidence on this point was as follows:
“ Q. From whom did you hear about the trouble at West Albany? Mr. Brooks asked you if you heard anything about an accident? A. The train despatcher at Greenbush (East Albany).
“ Q. What did he tell you? (Objected to,' and admitted, as bearing on the plaintiff’s due care.) A. I was told, I made an inquiry about the missing car, and he said nothing would keep it back unless a broken car, and he telephoned; he told me that there was a broken car, the Boston and Albany telegraph despatcher.”
The evidence on this point was as follows:
“ Q. Now, as to the occasion of this time in March, 1896, will you tell us what the circumstances were attending the signing of this contract, how did you happen to sign this contract, what were the circumstances attending it? (Objected to, and admitted.)
“ Q. You signed this in March, 1896 ? (Objected to, and admitted.) Where did you sign this paper? A. At the station at Richville; Mr. Fults, the agent, asked me to sign it; he said he neglected to take a paper of me; that was generally done when they shipped stock, and they had sent to him for a copy, and if he couldn’t furnish one he would be likely to lose his position, and if I would sign one he would be very glad, as it was a mere matter of form between him and the company ; I think I didn’t sign that day; I was about to take a passenger train, and when I came back he again approached the subject and I simply signed it.
“ Q. Whether or not anything was said by you or by the agent to you as to this paper taking effect, or having any effect upon the transaction in reference to shipping these cattle in May, 1895? (Objected to, and admitted.) A. There was nothing said.
“ Q. With reference to this paper, when you signed it, did you read it? A. No, sir. (Objected to, and admitted, as bearing upon the question of whether the parties intended the paper to be a contract.) ”