107 S.W. 560 | Tex. App. | 1908
This was a suit by G. B. Vandeventer against the International Great Northern Railroad Company to recover damages alleged to have been suffered by a stallion belonging *367 to plaintiff while being unloaded at destination, a station on the line of the defendant. Plaintiff alleged that said animal was shipped by him from LaFayette, Indiana, on or about February 23, 1905, and after being safely transported over the lines of other carriers, was delivered to the defendant at Longview, Texas, about March 1, and by it carried to Rockdale, Texas. That in unloading said animal at said place defendant negligently failed to properly arrange the means or appliances for unloading and that by reason of such alleged failure, said stallion was injured while being removed from the car.
Defendant interposed a general demurrer, special exceptions, and a general denial, and, by way of answer, plead that said stallion was shipped from LaFayette, Indiana, under and by virtue of a certain written contract executed by plaintiff at said place, and alleged and relied upon the terms and stipulations of said contract as being binding upon plaintiff and available as defenses to defendant. Among other things defendant specially plead that plaintiff, under the terms of said contract, was bound to load and unload said animal, that said shipment was an interstate shipment, and that under said contract plaintiff had expressly limited his recovery for loss to the maximum sum of $100.
In replication plaintiff filed his first supplemental petition to defendant's amended original answer, interposing a general demurrer, special exceptions and a general denial.
There was a trial before court and jury October 23, 1906, resulting in a verdict and judgment for plaintiff in the sum of $500.
The horse in question was shipped from LaFayette, Ind., under a contract of shipment there entered into between the appellee and the Wabash Railroad Company, to Rockdale, Texas, a station on the line of the appellant's road. The appellant received the horse as a connecting carrier at Longview, Texas, and was entitled to the benefits of the original contract of shipment if its terms could be given effect in order to limit or relieve it from liability for the injury occasioned by its negligence. The contract contained a stipulation limiting liability to a sum not exceeding one hundred dollars, and contained a stipulation that the carrier could be held liable only in the event of gross negligence. The horse reached Rockdale in good order, and was by the negligence of the appellant, substantially as pleaded, injured while being unloaded from the car at that place. The plaintiff was present when the horse was unloaded, but the unloading was under the direction and supervision of appellant's agents. The horse was a valuable stallion, purchased for breeding purposes, and the evidence shows he was worth between $1500 and $2000; and the petition alleges his value to be many hundred dollars more than the sum agreed upon in the shipping contract. There is evidence which shows that the value of the horse, by reason of the injuries sustained in unloading, was lessened a sum equal, if not greater, than that found by the verdict.
Appellant's first and second assignments of error complain of the action of the trial court in sustaining plaintiff's demurrers to the allegations of appellant's answer which seeks to limit its liability *368
to only $100 and to liability only for gross negligence. A common carrier can not by contract relieve itself from liability from loss or injury arising from its negligence, and this is the rule whether the shipment be interstate or domestic. New York Cent. Ry. v. Lockwood, 17 Wall., 357; Chicago, M. St. P. Ry. v. Solan,
The answer in this case sets out the terms of the contract, but none of the facts connected with its execution are alleged, except the general statement that it was valid and just under the laws of Indiana, and, unless we are required to apply the laws of that State in construing the contract, there was no error in sustaining the demurrers. In Missouri Pac. Ry. v. Harris,
But it is insisted that as the limitation upon liability was lawful under the laws of Indiana where the contract was entered into, it must be construed with reference to those laws. Of course, as a general rule, it is conceded that the law of the place where the contract is entered into will govern, subject, however, to an apparent intention that the law of place of performance or of partial performance *369
should apply; or subject to the exception that the State where it is performed and enforced will not apply the law of the State where executed when such law conflicts with statutory law or a settled rule of policy that prevails in the State where sought to be enforced. We have a statute in this State which prohibits the carrier from limiting its common law liability, but by reason of the peculiar language in which it is framed, it has been definitely settled that it applies only to the local business of the carrier within this State. Texas P. Ry. Co. v. Richmond Tiffany,
It is clear from these decisions, and those previously cited, together with such legislation as we have upon the subject, that it is the settled policy with us that a carrier may not, by contract, escape liability for injury or loss that arises from its negligence; and that a contract that contravenes this policy will not be enforced. The present case is unlike St. Louis, I. M. S. Ry. v. Hambrick, 17 Texas Ct. Rep., 244, and Chicago, R.I. P. Ry. v. Thompson,
Our findings of fact dispose of appellant's third and fourth assignments *370
of error. But, however, the questions of fact presented by the third assignment are not properly raised so that we are required to pass upon same. The assignment of error is broad, but the complaint in the motion for new trial as to verdict not being supported by the evidence is narrow. It is merely to the effect that "the verdict of the jury is contrary to and against both law and the evidence, and is unsupported thereby." In International G. N. Ry. v. McVey,
Affirmed.
Writ of error refused.