5 S.D. 568 | S.D. | 1894
Lead Opinion
In March, 1887, the plaintiff shipped from Avoca, Wis., a car load of live stock and emigrant movables over defendant’s road, consigned to himself at Bristol, D. T. The car containing the freight arrived at Bristol, and the plaintiff, while removing the live stock from the car, was injured, to recover for which this action is brought. The live stock and movables were shipped under a special contract, by the terms of which the plaintiff was permitted to pass on the train to care for and look after his stock. The material parts of the contract, so far as they affect this case, are as follows:
“(Exhibit A.) Chicago, Milwaukee & St. Paul Railway. Live-Stock Contract. * * * Persons in charge of live stock will'be passed on the train with, and to care of it, as follows: One man with two or three cars, two men with four or seven cars, three men with eight cars, which is the maximum number that will be passed for one owner. Passes will be furnished in manner provided on back of this contract, to persons, who, as above, may have been in charge of two or more*573 cars of stock. No return passes given on west-bound shipments. No person will be passed with one car of live stock except that one car of horses or mules or emigrant movables containing live stock will entitle the owner or man in charge'to pass one way on the same train, to take care of it. * * * * Such entry of persons in charge and certificate of billing agent to that effect will be the authority of conductors to pass them with the stock. All persons are thus passed only at their own risk of personal injury from whatever cause. A. C. Bird, General Freight Agent. ”
“ * * * Received of Anton Meuer, one car live stock and. emg. mov. as per margin, to be delivered at Bristol, Dakota, station at special rates, being 845,00 per car; which stock is to be loaded and unloaded, watered and fed by said Anton Meuer, or his agents. * * * The Chicago, Milwaukee & St. Paul Railway Co., by D. Bohan, Agent. Anton Meuer, Shipper.” Indorsement on back: “Parties actually in charge of and accompanying the within stock must write their own name in ink here. [Signed] Anton Meuer.”
The contract was introduced in evidence by the plaintiff. At the close óf the plaintiff’s evidence, and again at the close of all the evidence in the case, the defendant moved the court to instruct the jury to return a verdict for the defendant on the ground that, by the terms of the contract, the plaintiff assumed all risk “of injury from whatever’cause, ” and could not, therefore, recover in this action. These motions were denied, and exceptions duly taken.
The learned counsel for the appellant contend that, under the terms of the contract signed by the plaintiff, he agreed to assume all the risk of personal injury from whatever cause; that such a contract was authorized by the laws of this state, and was a legal, valid, and binding contract, exonerating the defendant from all liability for personal injuries to the plaintiff, from whatever cause received. They further contend that the contract, though made in Wisconsin, would nevertheless be
The first question, then, to be determined is, what is the law of this state as to the right of a common carrier to limit his liability ? for the contract in this case must be interpreted by our law upon this subject. There is a direct conflict in the decisions of the various courts upon the question of the right of common carriers to limit their common-law liability for the negligence of themselves and their servants by special contracts. In Railroad Co. v. Lockwood, 17 Wall 357, the supreme court of the United States held that common carriers do not possess the power to limit their liability, even by express contract, for the negligence of themselves or their servants; and this view'was affirmed in Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469. On the other hand, the court of appeals of New York, in a number of cases, has held that common carriers possess such power. This doctrine is clearly laid down in Bissell v. Railroad Co., 25 N. Y. 442, and affirmed by that court, after the dicision in Railroad Co. v. Lockwood, supra, in Mynard v. Railroad Co., 71 N. Y. 180. This court, however, is not called upon to decide between these conflicting opinions, as the Code of this state has settled the question within this jurisdiction. Hartwell v. Express Co., 5 Dak. 463, 41 N. W. 732; Hazel v. Railroad Co (Iowa), 48 N. W. 926; Kirby v. Telegraph Co. (S. D.) 55 N W. 759. The sections of the Code bearing upon this question constitute sections 3881-3888, Compiled Laws, and read as follows: “Every one who offers to the public to carry persons, property or messages, is a common carrier of whatever he thus offers to carry.” 3886: “The obligations of a common car
Assuming that plaintiff’s injuries occurred while such pas^ senger upon the train, and that they occurred from the ordinary negligence of the defendant or its servants, the limitation in the contract would seem to be such a one as is permitted by the statute, and would exonerate the defendant from liability for the injuries plaintiff sustained, the contract being a special contract, and signed by the respective parties, as required by the statute. The terms of the contract are clearly stated. There is no ambiguity in its stipulations, and the intention of the parties is clearly ascertainable from the terms of the contract. The plaintiff was, by the terms of the contract, to be carried upon the same tram with his live .stock and movables, without extra charge, to care for and feed and water his stock; but at his own “risk of personal injury from whatever cause.” This contract the law permitted the parties to make. Section 3881'defines who are common carriers, and section 3886, in the same chapter, provides “that the obligations of a common carrier * - * * may be limited by special contract.” And section 3887 uses the same general term, “a common carrier,” etc. Interpreting the contract by the law, it is difficult to perceive any valid reason for holding the defendant liable for plaintiff’s injury. The contract, as we have seen, is one which the law permits the common carrier to make, and by its terms it clearly exonerates the defendant from liability for injuries caused by
It is further contended that the contract in this case is invalid, under the provisions of section 3578, Comp. Laws, which-reads as follows: “All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” But the contract in this case is not a contract to violate any express law. It cannot be said that a contract permitted and sanctioned by express law is a contract to violate the law. If we are correct, the sections of the statute relating to common carriers permits common carriers of passengers as well as common carriers of property to make the contract in question, subject, of course, to the exceptions contained in the law. The argument of counsel would have much more weight as applied to carriers of freight than as applied to the carriers of passengers, as carriers of freight at common law were absolute insurers of the safe delivery of the property intrusted to-them, except where the loss occurred ‘ ‘by the act' of God, or the public enemy, or by their own decay from inherent infirmity, or by the fault of the owner thereof.” Further exceptions are made in the carrying of live stock, not material now to be stated. If
The counsel further contend that, as the stipula tion in the contract is general, and does not specifically limit the liability of the defendant to the negligence of itself or-servants, such negligence is not included; in other words, the language of the stipulation, “risk of personal injury from any cause,” does not include injury caused by the negligence of the defendant or its servants. There is force in this contention, and it has some support from the New York decisions. The doctrine is thus stated in Mynard v. Railroad Co., 71 N. Y. 180: “When general words may operate without including the. negligeece of the carrier or his servants, it will not be presumed that it was intended to include it.’’ But this doctrine has generally been applied to contracts by carriers of freight. And even in this class of cases, when there is nothing in the contract upon which the general words, can operate, unless the negligence of the defendant or his servants is included, such negligence is included in the general words, “for whatever cause. ” This doctrine is illustrated in Cragin v. Railroad Co., 51 N. Y. 61, and Holsapple v. Railroad Co., 86 N. Y. 275. In the former case the court says: “In this case the plaintiffs assumed and agreed to take the risk of injuries to the hogs in consequence of heat. Effect should be given to this stipulation. The parties must be held to have meant something by it. In consideration that the plaintiff’s would assume and take certain risks, which would otherwise devolve upon the defendant, it agreed to carry at a reduced rate. If it be held that this stipulation simply exempts the defendant from liability for injuries to the hogs from heat without any fault on his part, then it gets nothing; for in such pase without the stipulation, it would not be responsible.
In the discussion thus far we have assumed that the plaintiff was injured while a passenger upon defendant’s road. It is contended, however, by respondent, that he had ceased to be a passenger when the injury to him occurred, he having arrived at Bristol, the place of his destination, and left the car. It appears from the evidence that after plaintiff’s car was- sidetracked at the station, the plaintiff wrent to an hotel in Bristol to get lanterns and assistants to aid him in unloading his car; that he was absent a short time, — how long does not appear, but evidently only for a short period, — when he returned, and proceeded to unload his stock. While it may be true, as contended by respondent, that when an ordinary passenger arrives at his destination, and leaves the train and the depot, his relation to the carrier as passenger ceases, but, when one sustains to the carrier the relation sustained by the plaintiff in this case, we think a different rules applies. Being required by his contract to load and unload his stock, we are of the opinion that by the terms of the contract it must be held to extend to the final unloading of the stock. The stipulation is not limited, but provides that “all persons are thus passed only at their own risk of personal injury, from whatever cause.” This would seem to include loading and unloading as well as transportation in the train. The plaintiff was unloading the car under the terms of the contract, when the injury occurred. To hold that he was acting under the contract in loading the stock,
There were a number of other questions discussed in the briefs of counsel and in the oral arguments, but, as these questions may not arise on another trial, we do not deem it necessary to discuss them. Our conclusion is that, under the contract construed by the law of this state and the record on this appeal, the motion of defendant that the court direct a verdict in its favor should have been granted. The judgment of the court below is' therefore reversed, and a new trial is ordered.
Concurrence Opinion
I express no opinion upon the independent proposition, that the statutes of a foreign state will be presumed to be the same as those of the forum. I concur, however, in the decision of the case. It is the duty of courts to sustain as valid and binding the deliberate agreement of parties, until some reason is shown against it. Assuming that in the absence of evidence, the courts of this state may not know what the statute law of Wisconsin is, or indulge any presumptions in regard to it, it still remains a fact that the laws of Wisconsin may be such as to allow or authorize a contract like this, and the court ought to treat the contract as valid, until it is affirmatively shown that the laws of that state do not allow it.