McGovern v. Ann Arbor Railroad

165 Wis. 525 | Wis. | 1917

Winslow, C. J.

There was ample proof that the apples were in good condition when received by the company, and the only serious question on this appeal is whether there is any sufficient proof of negligence on the part of the railway company.

It appears without dispute-that the letters “O. R.” (meaning “owner’s risk”) were on the face of the bill of lading when the consignor (who was also the owner) received it. The consignor testified that at the time he signed the bill of lading it contained the indorsement “Owner’s risk — Charges guaranteed,” that he understood the situation and the weather conditions at the time, that the matter of weather was then talked over with reference to the apples freezing in the car, and that the bill of lading was made out with reference to the conditions then existing. He makes no claim that he did not fully understand that the letters “0. R.” meant “owner’s risk,” nor does he claim that he was ignorant of the fact that in the regular course of the defendant’s business considerable time must necessarily elapse after the car arrived in Frankfort before it was taken upon the earferry.

By the acceptance of the bill of lading including the words “Owner’s risk,” or the letters understood by the parties to be their equivalent, the consignor relieved the carrier from its responsibility as an insurer and limited the same to responsibility for negligence. Abrams v. M., L. S. & W. R. Co. 87 Wis. 485, 58 N. W. 780; 4 Elliott, Railroads, sec. 1425. Was negligence shown? We are unable to reach that conclusion. The shipping contract was made in the dead of winter, when both parties knew that zero weather was liable to come at any time, and the weather conditions were fully understood and discussed. The company by its published tariff (which was part of the contract) offered the shipper of such property the opportunity of putting a stove in the car with a man in charge of it under certain conditions, but did not offer to warm or house the car itself. The shipper did not choose to put a stove in the car under the conditions offered, but decided (by accepting-the bill of lading) to assume the risks incident to an ordinary and expeditious transit of the car to its destination, one of the most obvious of which was the risk of freezing. The car went through expeditiously and on schedule time. The damage resulted not from delay nor from any act or omission of the defendant, but from the operation of a cause beyond the control of either party. In the published tariff of the defendant there is no provision for the furnishing of heat in the transportation of vegetables or fruits; the rule hereinbefore referred to authorizing the shipper to furnish a man and stove is the only provision on the subject contained in the tariff. This tariff having been.approved by the interstate commerce commission is absolutely controlling, and the railroad company is not permitted to give greater or less service than it provides. There is no evidence of any custom on the part of railway companies to “roundhouse” such shipments en route as was the case in Victor P. Co. v. C. & N. W. R. Co. (Minn.) 160 N. W. 201. We fail, therefore, to find any evidence on which the conclusion of negligence can be based.

By the Gourt. — Judgment reversed, and action remanded with directions to dismiss the complaint.