John Schroeder Lumber Co. v. Chicago & Northwestern Railway Co.
135 Wis. 575
Wis.
1908
Check Treatment
KeewiN, J.

1. The defendant is a common carrier and as such contracted with the plaintiff to transport the horses and other personal property in question from Saxon to> Ashland for the usual consideration. Under this contract defendant was an insurer against all damage to or loss of the property intrusted to it during transit, except such loss or damage as might arise from the acts of God, public enemies, or the acts of the owner himself, and also “subject to some restrictions and liabilities arising out of the instincts, habits, propensities, wants, necessities, vices, or locomotion of the animals.” Leonard v. Whitcomb, 95 Wis. 646, 70 N. W. 817; Klauber v. Am. Exp. Co. 21 Wis. 21; Ayres v. C. & N. W. R. Co. 71 Wis. 372, 37 N. W. 432; Abrams v. M., L. S. & W. R. Co. 87 Wis. 485, 58 N. W. 780. In carrying out its contract the defendant was bound to furnish suitable cars *579for the transportation of the horses. Ayres v. C. & N. W. R. Co., supra. In the ease before ns the car furnished was insufficiently ventilated, in consequence of which some of the horses were suffocated and others thrown down and injured. So the question arises whether or not the defendant is liable for failure to furnish ai suitable car. The liability, if any exists, rests upon the contract of carriage. It is claimed on behalf of the defendant that a verdict should have been directed, for the reason that the agents of the plaintiff contracted for the shipment of the horses and harnesses in the particular car in which they were shipped with full knowledge of the defects, and therefore it cannot recover in this action. We think sufficient of the testimony has been set out in the statement of facts to show that this position is not' tenable, and that it cannot he said as matter of law that the defect in ventilation which was the proximate cause of the injury was so obvious and apparent that plaintiff must he charged with knowledge thereof. There is evidence that the agents of plaintiff first objected to the car furnished mainly because of its size, and put the horses in the barn to await the arrival of a larger car which defendant’s agent expected on a freight train going through Saxon about noon; hut a larger car was not furnished, and the principal talk was with reference to the ability of the plaintiff’s agent to get the horses into the small car. True, .there was some talk with reference to ventilation, but this was principally to the effect that it would be better for the horses and their condition during transit if the car were better ventilated by having openings at the ends. There .is evidence tending to show that the agents of plaintiff were not aware that there was danger of suffocation on account of the imperfect ventilation. Besides, they acted at least to some extent upon the judgment of the defendant’s agent. In order to relieve defendant from liability we must be able to say that plaintiff contracted to accept this car with full knowledge that it was so imper*580fectly ventilated as to be likely to produce the injury complained of, and we are clearly of tbe opinion that the evidence does not warrant, as a matter of law, any such conclusion, but that the question was clearly one for the jury. Therefore there was no error in refusing to direct a verdict for defendant. Leonard v. Whitcomb, 95 Wis. 646, 70 N. W. 817; Nevius v. C., St. P., M. & O. R. Co. 124 Wis. 313, 102 N. W. 489; Densmore C. Co. v. D., S. S. & A. R. Co. 101 Wis. 563, 77 N. W. 904; Clarke v. R. & S. R. Co. 14 N. Y. 570; Harris v. N. I. R. Co. 20 N. Y. 232; Pratt v. O. & L. C. R. Co. 102 Mass. 557.

2. The only other question necessary to consider upon this appeal is whether the case was properly submitted to the jury. Counsel for appellant asked that the following question be submitted to the jury as part of the special verdict: “Was such insufficiency known to the men in charge of said horses?” We think the vital question in the case was whether or not the car was sufficiently ventilated, and this question we think was properly for the jury, and should have been submitted without complicating it with the question respecting the size of the car. If the sufficiency of size of the car were the only question, this fact was known to plaintiffs agents and they contracted with full knowledge of it. But the important question is whether they knew the danger incident to insufficiency of ventilation. The first question of the special verdict presented to the jury the fact whether defendant failed to provide a car suitably ventilated, and the second question whether defendant failed to provide a car of sufficient size, while the fourth question requires1 them to answer whether, if the first or second question be answered “Yes,” plaintiff’s agents or servants knew that said insufficiency might be the jn'oximate cause of an injury to plaintiff’s property. Now, this condition of the verdict left the jury to answer the fourth question “No” if they should find either that the car was not suitably ventilated or *581not of sufficient size. So we think under the verdict as presented the real issue in the case was not fairly and clearly •submitted to the jury, namely, whether or 'not plaintiffs employees knew the probable consequences of the defective ventilation, and, so knowing it, accepted "or selected the car in question. We think for failure to submit the question asked by counsel for appellant or some suitable question as above indicated the judgment must be reversed and a new trial granted. Other errors discussed need not be considered.

By the Court. — :The judgment of the court below is reversed, and the cause remanded for a new trial.