14 W. Va. 180 | W. Va. | 1878
delivered the opinion of the Court:
The enquiries presented to our consideration by the record in this case are : First, whether a railroad company is a common carrier of cattle; and if so, what are its duties and responsibilities as such ? Second, can these duties and responsibilities be modified by special contract ; and if so, to what extent ?
At common law a common carrier is one, who undertakes for hire to carry from place to place the goods of all persons indifferently. Gisbourn v. Hurst, 1 Salk. 249 ; Hale v. The New Jersey Steam Navigation Company, 15 Conn. 539; Elliott v. Rossell, 10 Johns. 1; Dwight v. Brewster, 1 Pick. 50; Orange Bank v. Brown, 3 Wend. 161; Allen v. Sackrider, 37 N. Y. 341. Railroad companies are obviously within the terms of this definition and unquestionably common carriers, they being bound to carry from place to place the goods of all persons indifferently for hire. See Parker v. The Great Western Railway, 7 Man. & G. 253; Muschamp v. Lancaster Railway, 8 M. & W. 421. And railroad companies being under the same obligation to carry for hire from place to place cattle, as well as other goods, of all persons indifferently, must be held to be common carriers of cattle.
It has been said, that common carriers of cattle were unknown to the common law originally; but so were common carriers of pianos, and many other things transported now constantly by common carriers. At common law the character of common carriers was not determined by the kind of property they carried. At common law a man might become a common carrier of just such kinds of property as he chose. He was a common-carrier of such kinds of property as he publicly undertook as a business to convoy for all persons indifferently for hire.
At common law a common carrier was liable'for all damage or loss of goods during the carriage from whatever cause arising, unless such damage or loss arose from act of God or from the public enemy, except when the loss arises from the nature and inherent character of the property carried, such as the natural decay of perishable articles, or the fermentation or evaporation of the articles liable to these effects, or the natural and necessary wear of certain articles, or from defects in the vessels or packages in which they were put, or, in the case of cattle, when the loss arises from their own.vitality, as where vicious and unruly animals injure or destroy themselves or each other, or starve themselves from refusing food,
It is well established, that a railroad company is not. responsible, where an accident arises from the viciousness or temper of the animal transported or from the natural propensity of the animals, if the agents of the railroad company have used foresight, diligence and care to prevent such loss or damage. See Clarke v. Rochester & Syracuse Railroad Co., 14 N. Y. (4 Kernan) 571; Cragin v. New York Central Railroad Co., 51 N. Y. 61; Conger v. Hudson River Railroad Co., 6 Duer 375; Hall & Co. v. Renfro, 3 Metc. (Ky.) 53.
As the duties and responsibilities of common carriers were prescribed by public policy, it has been seriously doubted, whether the courts did wisely in allowing that policy to be departed from without legislative interference, by which any needed modification could have been introduced into the law; but the courts have relaxed the common law rule to the extent of authorizing certain exemptions from liability on the part oí common, carriers for hire by special contract; and the danger is, that these exemptions by special contract may be carried beyond legitimate limits and introduce evils, against which it was the express policy of the law to provide. See Railroad Co. v. Lockwood, 17 Wall. 357.
The courts have generally permitted common carriers
It seems to me highly unreasonable, that a common carrier for hire should in any case be permitted by special contract to exempt himself from responsibility from losses arising from his own negligence. And it is no less unreasonable to permit him by special contract to exempt himself from losses, which result from the carelessness or negligence of his servants. For the main object of the common law in making common carriers insurers was to secure the most exact diligence and fidelity on the part of the servants of the common carrier._ As corporations can only act though their servants, to hold, that as common carriers they may by special contract exempt themselves from all liability for losses arising from the negligence of their servants, is really to hold, that they may- exempt themselves from all liability as common carriers. And as a very largo portion of the transportation of the world is now carried on by railroad companies as common carriers, and as they almost always in the transportation between different places have practically a monopoly of the business, so that if they insist that such special contracts bo made, the passenger or shipper has practically no choice but to submit to entering into such special contracts, or to forego his journey or the sending off of his freight, the result would be practically the abolition of the whole law of common carriers, and all corporations would become substantially pi’ivatc carriers on their own terms instead of common carriers as designed by their charters. Indeed they would not have placed on them even the responsibilities ofpi’iv.ate carriers; for neither they nor any other party
Judge Redfield in his work on Carriers and other Bai-lees, well says, §156 : “There is something very incongruous and not a little revolting to the common sense, that a bailee for hire should be allowed to stipulate for exemption from the consequences of his own negligence ordinary or extraordinary. A laborer, domestic, or mechanic, who should propose such a stipulation, would be regarded as altogether unworthy of confidence in any respect ; and the employer, who would submit to such a condition, must bo reduced to extreme necessity, one would suppose.”
Since the courts have determined, that common carriers for hire may by special contract based on valuable consideration, exempt themselves from some liabilities imposed on them by the common law, till the Legislature determines by statute law, what these liabilities are, from which they may so exempt themselves, the courts must determine thereon. Arid all that can now be laid down is, that such exemptions must be just and reasonable; that exemption from responsibility arising from losses occasioned in any degree by the negligence oí the common carrier or his servants are not just and reasonable , but exemption when specially stipulated for, from losses arising from inevitable accidents unaccompanied by any negligence, though not caused by the ad of God or the public enemy, are reasonable and just. What other exemptions, if any, when so stipulated for should be held reasonable and just, must be hereafter determined as the cases arise presenting the question to the courts for their determination.
The views above expressed are substantially those held by the Supreme Court of the United States in the case of Railroad Co. v. Lockwood, decided in 1873 ; and they are sustained by the weight of authorities. The old English authorities held special stipulations against liability for negligence or misconduct illegal and void. Thus in the Doctor and Student, Dialogue 2028, speaking of a common carrier it is said : “ If he would refuse to carry articles delivered for carriage, unless promise were made unto him/ that he shall not be charged for misdemeanor that should be in him, the promise was void, for it was against reason and against good manners, and so it is in all other cases like,” and this passage is quoted by Noy in his maxims at law. Noy’s Maxims 92. Stevens in his commentaries vol. 2, p. 135, states, that a common carrier's liability might by special contract bo varied, but the law would still hold him responsible for negligence and misconduct.
This remained the law in .England as late as the year 1832. Mr. Justice Blackburn in the case of Peck v. North Staffordshire Railway Co., 10 House of Lords Cases, page 494, states, that common carriers could not by the English law as formerly established by the weight of authority, by any special agreement, exempt I,hem-selves from all responsibility, so as to evade alto-
Tn the case of Carr v. Lancashire and Yorkshire Railway Company, 7 Exch. Rep. 707, the defendant had received a horse to be carried for him in a horse box, subject to conditions at the foot of a ticket for the conveyance of a horse, in these words: “This ticket is issued subject to the owner’s undertaking all risks of conveyance whatsoever, as the company will not be responsible for any injury or damage (however caused) occurring to live stock of any description traveling upon the Lancashire and Yorkshire Railway Company, or in their vehicles.” The horse was killed, as the jury found, by the gross neg
In the case of Walker v. York and North Midland Railway Co., 2 El. &Bl. 750, decided in 1853, the facts were these: The defendant had caused notices to be served personally on a number of fishermen at Scarborough, stating that they would not carry fish except subject to certain conditions limiting their responsibility. The fishermen made much objection to this. The nbtices were torn up; and something of a riot occurred. The court instructed the jury, that they might draw the inference from the service of the notice and the plaintiff subsequently sending the fish, unless the plaintiff had unambiguously refused t® deliver the fish on the terms of the notice, and the defendant had acquiesced in that refusal. The verdict was for the defendant; audit was sustained by the court of Queen’s Bench.
The rail road companies under these decisions, were enabled in a great measure “ to evade altogether the salutary policy of the common law.”
To correct this course of decisions Parliament enacted the 7th section of the railway and trafic acts of 1854, which is found much fault with on account of its obscurity; but Avhen these previous decisions arc considered the intention of the Legislature seems clear enough. So much of this section as bears upon the present discussion is in these words : “ Every such company as aforesaid shall bo liable for the loss of, or for any injury done to, any horses, cattle, or other animals,- to any articles, goods, or things, in the necessary forwarding and deliv-
Much controversy has arisen in the English courts in construing this act, which is certainly inartificially drawn and badly expressed. Thus it has been said by some judges, that a condition incorporated in a signed contract was not within the enactment in the beginning of this 7th section, &c. Pardington v. South Wales Railway Company, 1 H. & N. 392.
The true construction of this act is thus given by Lord Chief Justice Jervis: “ The fair meaning of this section, as it seems to me, is this: the first branch of it declares, that all notices, conditions and declarations made and given by the company shall be null and void, in so far as they go to relieve the company from liability for loss or injury to goods, &e., in the receiving, forwarding and delivery thereof, occasioned by the neglect or default of the company or its servants. .But then it goes on to provide in the next branch, that this shall not prevent the company from making such conditions, which shall be adjudged by the court or judge before
This construction was adopted by the Queen’s Bench in Peck v. North Staffordshire Railroad Co., and by the Exchequer Chamber in McManus v. Lancashire and Yorkshire Railway Co.; and was approved in Peck v. North Staffordshire Railroad Co. in the House of Lords. See House of Lords R., vol. 10, p. 473. So construed, so much of this act, as declared, that the special contract made by the shipper with.the common carrier relieving it from any portion of its common law liability must be just and reasonable in law, or otherwise it should be void, was nothing but an affirmation of common law principles as held prior to the recent English eases made after the year 1832.
Various decisions have been rendered in England since the passage of this act, as to what exemptions by special contract are just and reasonable. The act was passed specially with ■ reference to those exemptions by special contract of all loss or damages by uegligenee of the servants of common carriers. This exemption under this act is of course unjust and unreasonable. But it is held, that there are other exemptions, which are also unjust and unreasonable and therefore void, though provided for by special «onü’act.
. I shall not revieiv the English cases on this subject further than to state, that in Peck v. The North Staffordshire Railway Co, 10 H. of Lords 473, it was held, that an exemption by special contract from loss or damage to marble chimneys, unless their value was declared, and they were insured, the rate of insurance being fixed at 10 per cent, on their declared value, was an unreasonable and unjust exemption and therefore void.
In New York the same inconsistent course of decisions have been followed as in England. Eor a long time the
In apparent accord with these views were the decisions in the cases of Parsons v. Monteath, 13 Barb. 353, and Moore v. Evans, 14 Barb. 524.
In 1858 the Supreme Court advanced still further in the same direction, and held in Wells v. The New York Central Railroad Co., 26 Barb. 641, that in case of a gratuitous passenger traveling on a free ticket a common carrier may stipulate against responsibility for negligence of its servants. And this judgment was affirmed by a majority of the Court of Appeals, 24 N. Y. 181. This decision was followed in Perkins v. The New York Central Railroad Co., 24 N. Y. 196; and it was held, that this exemption might be extended to all kinds of negligence of its agents gross as well as ordinary. A considerable controversy then arose, as to whether a drover, who had a free pass to enable him to go with and care for his cattle, which were being transported for him,
This controversy was decided by thejudgment of the Court of Appeals in Bissell v. The New York Central Railroad Co., 25 N. Y. 442; the majority of the court, four judges against three, holding, that a drover in such case was to be regarded as a free passenger. In this case they on this point reversed the decision of the case by the Supreme Court. See 29 Barb. 602. Nor was this decision in consonance with the decision in Smith v. New York Central Railroad Co. See 29 Barb. 132, and 24 N. Y. 222. Subsequent New York decisions have not only followed this decision, but have carried the right of a common carrier to exempt itself from, its common.law liability still further; and it may now be regarded as settled in New York, that a common carrier for hire may by special contract exempt itself from all responsibility or.loss arising from the negligence of its servants, though this negligence be gross. See Poncher v. New York Central Railroad Co., 49 N. Y. 263; Cragin v. New York Central Railroad Co., 51 N. Y. 61; Maguin v. Dinsmore, 56 N. Y. 168; Steers v. The Liverpool, New York and Philadelphia Steamship Company, 57 N.Y 1.
But even in New York it is held, that while a common carrier may stipulate for exemption from liability for losses occurring through his negligence, yet his contract will not be construed to contain such exemption unless it is so expressly agreed. Magnin v. Dinsmore, 56 N. Y. 168.
■ The New York cases were carefully reviewed bv the Supreme Court of the United States in Railroad Co. v. Lockwood, 17 Wall. 357; and the modern New York cases were disapproved.
There are cases in some of the other states, in which dicta of judges, and some decisions, either follow or favor more or less these modern New York decisions. In Ashmore v. Pennsylvania Steam Towing Transportation
In the case of Lawrence v. New York, Providence and Boston R. R. Co., the special contract contained in the bill of lading provides: “that no responsibility will be admitted under any circumstances to a greater amount upon any single article of freight than $200.00, unless upon notice given of such amount and a special agreement thereforand no negligence on the part of the railroad company or its agents appearing, it was held, that such contract as to the amount of the recovery was binding.
In Kimball v. Rutland and Burlington Railroad Co., 26 Vt. 247, it was hold, that a common carrier may by special contract with a shipper so change his relations as to become a private carrier, and in such case he can. not ho sued as a common carrier.
In Illinois Central Railroad Co. v. Morrison, 19 Ill. 136, it was held, that a common carrier might enlarge or~’diminish his liability by express contract, but not so asjto exempt itself from gross negligence or wilful misfeasance of duty. And the same was held to bo the law in Illinois Central Railroad Co. v. Adams, 42 Ill. 474, in which case it was held, that the failure of the conductor of a train to throw water on hogs being transported, which were in danger of dying from heat, was gross negligence, and no contract could protect the railroad company from liability therefor.
In Hawkins v. Great Western Railroad Co., 17 Mich.
In the B. & O. R. R. Co. v. Brady, 32 Md. 333, the court lay down the general proposition, that by express contract a railroad company may limit its responsibility as a common carrier, but says nothing about the effect of negligence on their part.
These decisions and the cKcict.of judges in them give perhaps some countenance to the recent Now York decisions ; but the great mass of the American authorities are in direct and irreconcilable conflict with these recent New York cases. Thus in Pennsylvania it is settled by a long course of decisions, that a common carrier can not limit his liability so as to cover his own or his servants negligence. See Furham v. Camden and Amboy Railroad Co., 55 Penn. St. 53; Laing v. Colder, 8 Penn. St. 479; Camden and Amboy Railroad Co. v. Baldauf, 16 Penn. St. 67; Goldey v. Pennsylvania Railroad Co., 30 Penn. St. 242; Powell v. Same, 30 Penn. St. 414; Pennsylvania Railroad Co. v. Henderson, 51 Penn. St. 315; Express Co. v. Sands, 55 Penn. St. 140; Empire Transportation Co. v. Wamsutter Oil Co., 66 Penn. St. 140. And we may observe, that the case of Pennsylvania Railroad Co. v. Henderson, above cited was the case of a drover’s pass and the contract stipulated for immunity in case of injury from negligence of its agents or otherwise.
In Ohio by numerous decisions the law is settled, that a railroad company can not by special contract exempt itself from liability for losses occasioned by its negligence or that of its servants. SeE Jones v. Voorhees, 10 Ohio 145; Davidson v. Graham, 2 Ohio St. 131;
In the case of Cleveland Railroad v. Curran, above cited,jit was held in relation to a drover’s pass similar to the one in this case, that the holder was not a gratuitous passenger, and that in such ease a contract exempting a company for loss by reason of the negligence of the company’s servants would be void as contrary to public policy. It approves of the Pennsylvania cases above cited on this subject.
The main difference between the Pennsylvania and Ohio decisions is, that the former give to a special contract not in violation of public policy the effect of converting the common carrier into a special bailee for hire, whose duties are governed by the contract; and if negligence is charged, it must bo proved by the party injured; whilst the latter hold, that the character of the carrier is not changed by the contract; but he is still a common carrier, with enlarged exemptions from responsibility, within which the burden of proof is on him to show proper care and diligence, when an injury occurs. The effect of this difference is to shift the burden of proof from one party to the other. . This diversity between the decisions of these two States is pointed .out by Justice Bradley in the Railroad Co. v. Lockwood, 17 Wall. 370. Reason and justice are with the Ohio decisions on this point of diversity from the Pennsylvania cases.
In Maine it is held, that a railroad company cannot by express contract exempt itself from responsibility for damages, that may hajjpeu to cattle by their negligence, and that in such case it makes no difference, whether the negli-gonce be ordinary or gross, such distinction in such case being untenable. See Sayer v. Portsmouth, &c., R. R Co., 31 Me. 228, 238.
The Supreme Court of the United States too, while holding that a common carrier for hire may exempt itself from certain common law liabilities by a special contract, holds, that it cannot exempt itseli from responsibilities for any loss occasioned by any degree of negligence on its part or on the part of its servants. See Jersey Steam Navigation Company v. Merchants’ Bank, 6 How. (U. S.) 383; Philadelphia & Reading Railwry Company v. Derby, 14 How. (U. S.) 486; Steamboat New World v. King, 16 How. 469; York Company v. Central Railroad, 3 Wall. 107; Waller v. Transportation Company, 3 Wall. 150; Express Company v. Kountz Bros., 8 Wall. 342; Railroad Company v. Lockwood, 17 Wall. 357. And in such a case there is no distinction between negligence and gross negligence as laid down in the last case cited.
Precisely the same position is held by the Court of Appeals of Virginia. See Virginia and Tennessee Railroad Company v. Sayers, 26 Grat. 328. This was acaso, in which there was a special contract for the transportation of cattle in consideration of reduced charges and a free pass to the shipper.
These authorities sustain the position, that common
This proposition is in opposition to New York decisions; but the law was settled in New York by a divided court and in opposition to a decision of the Supreme Court of that State, and not in consonance with a previous decision of the Court of Appeals of that State. Put on the other hand this proposition is held to be true by the Supreme Courts in Ohio, Pennsylvania and Virginia, and by the Supreme Court of the United States.
I have reviewed the authorities at some length, because there is a decision of the Supreme Court of Appeals of
This case was decided during the war. It was argued at some length, and no doubt all the authorities then accessible were examined by the counsel and couft • yet few authorities were then accessible. The authorities referred to on this point by counsel were only the English and New York cases and the decisions of the Supreme Court of the United States up to that time. The court in its opinion cites but a single case. We have seen, that the recent New York and English cases are-in conflict with the great weight of authority. A decision of such importance rendered by a court under such disadvantageous circumstances, and in conflict with both reason and the great weight of authority, though it be our own court, we cannot follow.
The Court in that case also drew a distinction between ordinary and gross negligence. In speaking of this distinction the Supreme Court of the United States in Railroad Co. v. Lockwood, 17 Wall. 382, 383, say : “We have already adverted to the tendency of judicial opinion adverse to the distinction between gross and ordinary negligence. Strictly speaking these expressions are indicative rather of the degree of care and diligence, which is dno from a party, and which he fails to perform, than the amount of inattention, carelessness or stupidity, which he exhibits. If very little care is due from him,
“In each case, the negligence, whatever epithet we give it, is failure to bestow the care and skill, which the situation demand ; and hence it is more strictly accurate perhaps to call it simply negligence. And this seems to be the tendency of modern authorities' (citing 1 Smith's Leading Cases 7 American ed. 453; Story on Bailments §571; Wyld v. Pickford, 8 M. & W. 460; Hinton v. Dibbin, 2 Q. B. 66; Wilson v. Bret, 11 M. & W. 113; Beal v. South Devon Railway Co. 3 H. & C. 337; Grill v. Iron Screw Collier Co. L. R. 1 Common Pleas 600; Philadelphia & Reading Railroad Co. v. Derby 14 How. 486; Steamboat New Wold v. King, 16 How. U. S. 474,” to which I will add. Virginia Tennessee Railroad Co. v. Sayers, 26 Gratt. 348. The Supreme Court adds : “If these cases seek to abolish the distinction of degrees of care, skill and di 1 igence required in the performance of various duties and the fulfilment of various contracts, they go too far ; since the requirement of different situations is too firmly settled and fixed in the law to bo ignored or changed.”
The decided preponderance of authority is to hold a public carrier bound, whenever it is shown, that the loss or damage is occasioned by any negligence, whether gross, ordinary or slight, as shown by the above authorities.
The Court of Appeals of West Virginiahas heretofore shown, that it doubted the position laid down in Baltimore & Ohio Railroad v. Rathbone 1 W. Va. 87, when it, laid down the law with much more caution in the Baltimore & Ohio Railroad v. Skeets, 3 West. Va. 559. The language of Judge Berkshire there is : “The authorities, so far as I have been able to extend my examination, are uniform to this point, and it seems well agreed, that by
It remains to apply the law, as above laid down, to the present case. The two instructions given by the circuit court to the jury at the instance of the plaintiff are correct. The second, third, fourth and fifth instructions offered by the defendants were properly modified by the second, third, fourth and fifth instructions given by the court to the jury, or more properly speaking the defendant can not complain oi the modifications of these four instructions made by the court.
The second instruction given by the court should have been further qualified by adding at its end : “Provided such modifications are just and reasonable in law;” but the failure to so qualify it was no injury to the defendant ; and so far as it might be inferred from these instructions, that to exempt the defendant from responsibility arising from the loss of the cattle by heat in no manner attributable to the negligence of the defendant or its agents or servants, it was necessary for them to rely on the special contract, the instructions would not be correct, as a loss from heat, unaccompanied by any negligence on the part of the defendant, would not have made the defendants responsible at common law as common carriers, as such loss would have arisen in such case only from the inherent qualities of the thing transported, that is from the vitality of the cattle. But this incorrect inference, which might be drawn from these instructions, could not possibly have been any prejudice to the defendant. As to him it was immaterial, whether his exemption from responsibility for loss by heat unaccompanied by any negligence on his part was the result of his common law liability, or ol the special contract.
But the circuit court erred in refusing to grant the first and sixth instruction asked for by the defendant,
If they were put by the plaintiff on the slow stock train, they must, until that was done, have been in the plaintiff’s charge and under'his control; and the defendant as bailee could only be held, under this third count, responsible for bad care of them after that. And though the putting them in the hands of die defendant as bailee, after the regular stock train had left, and when the slow stock train was about to start, had been induced by the misrepresentation of the defendant’s agents, yet under this declaration no recovery could be had for losses resulting from such misrepresentations, as there was no complaint of this character made in the declaration. And if the facts had been .such as to justify an action against the defendant for its failure to supply cars to take off these cattle by the regular stock train, still, as the declaration made no complaint of such failure, and made no allegation of any breach of duty by the defendant in not supplying cars at the proper time, it would be no ground of recovery in this suit.
The court therefore erred in refusing the first and sixth instructions asked for by the defendant and in modifying the first instruction, as it did.
There was a demurrer to the declaration and each count thereof. I perceive no defects. The last two additional counts were against the defendant as a common carriers of cattle under a special contract.' The defendant, a railroad company, is, as we have seen, a common carrier of cattle; and though the contract sot out in these counts modified its responsibility as a common
The judgment of the circuit court rendered in this cause May 18, 1876, must be reversed and annulled; and the appellant must recover of the appellee its costs in this cause expended; and the verdict of the jury must be set aside, and anew trial awarded and the case remanded-to the circuit court of Mineral county to be then proceeded with according to the principles laid down in this opinion, and further according to law.
J u dgmeNt Reversed. '