Morrison v. Phillips & Colby Construction Co.

| Wis. | Jan 15, 1878

OetoN, J.

This is an action for damages to the horses of the plaintiff, shipped on defendant’s road at Waupaca, to be carried to Wauboo station, in January, 1877.

It is not pretended, and there is.no evidence, that the injury to the horses was caused by the peculiarity or natural propensity of such animals; and therefore such a question, and the law applicable to it, will not be considered.

Nor do we think that the question of the absolute liability of the company, as a common carrier and as an insurer of the property, is in the case:

1. Por the reason that the complaint appears to go upon the theory, and directly charges, that “ the said horses were so greatly cut, jammed, etc., and so permanently and greatly injured, etc., by reason of the negligence and carelessness of the defendant, while it had the care and charge of the same as aforesaid, etc., and by reason of the negligent care and careless conduct and misbehavior of the defendant in its calling as a common carrier,” etc. It would be a very technical and, as we think, unwarranted construction of the complaint, to hold that it contained a joinder of two causes of action, one predicated upon the absolute liability of the company, and the other upon its restricted liability, dependent upon actual carelessness and fault on the part of the company. The allegations of negligence are in the seventh-subdivision of the complaint, and in the natural order and connection of the general statement of the injury and damages complained of, and are not so separate and independent as to' indicate a design to state another cause of action.

2. Because the restricted liability of the company in the carrying of the property injured,, dependent upon its negligence and carelessness as charged in the complaint, clearly appeared by the receipt or contract introduced in evidence by the plaintiff himself.-

As we view the case, it must turn and be determined upon the question whether the defendant was careless, negligent, or in fault, in producing the injury complained of.

According to the evidence, the letters “ O. R,” found in the contract, meant Owner's Risk; and the defendant, in carrying live stock, always shipped it at the owner’s risk, and, for that reason, at reduced rates.

The plaintiff testifies that he did not see the words “ O. R.,” and never saw them until the day of trial, although the receipt had been in his possession and was produced by him on the trial; but there is no evidence, and he does not testify, that he did not understand the meaning of the abbreviation as used in it to be, owner’s risk. The point made by the learned counsel of the respondent, that the plaintiff’s testifying- that he did not see these letters in the receipt, and not testifying also that he did not' understand them, was an admission that he did know their signification, has much force. But the authorities are clear that he was bound to know what the contract contained and meant, and the effect of all its terms and conditions. Fuller v. The Madison Mutual Ins. Co., 36 Wis., 599" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/fuller-v-madison-mutual-insurance-6601676?utm_source=webapp" opinion_id="6601676">36 Wis., 599. In the case of Strohn v. Det. & Mil. R’y Co., 21 id., 554, it is held that the possession of the receipt by the plaintiff, containing special terms, is at least pri-ma facie evidence of his assent to it, and in most cases it may be absolutely conclusive. This authority would throw the onus to prove that ■ he did not understand the meaning of these letters, upon the plaintiff; and he offers no such evidence, not even his own testimony, and he was for along time in the exclusive possession of the receipt.

In Betts v. The Farmers’ Loan, & Trust Co., 21 Wis., 80, this court, in the opinion of its learned chief justice,'held that it was competent for the common carrier, by express contract, to limit its liability in all respects with reference to this kind of property.

This being, then, the true attitude of the case, the only remaining question is, whether the respondent, through its agents, servants, employees in the construction of its cars or in its management of the train, or in any other way, was guilty of any negligence, carelessness or fault which caused or pro■duced the injury to the property of the plaintiff, of which he complains.

It seems to be clear that the injury was caused by the breaking of one of the wheels under one of the freight cars of the train, which threw the car containing the horses off the track, and injured them. The wheel was new, and had been run but a short time, and was in appearance perfectly sound and of good material; and the presumption was, that it had passed the proper inspection, both at the place of construction and on the road, by competent inspectors; and, when examined after tbe accident, no flaw or defect could be observed; and its breaking was unaccountable; and the track upon which the train was wrecked was in good order.

The respondent’s liability depending upon the carelessness or fault of its agents, employees or managers in some way, and the appellant’s right of recovery depending upon the same being clearly shown by evidence, and it being his duty to furnish such evidence, it certainly was incumbent upon him to show how and why the accident occurred.

Erom all that appears in the evidence, it was a mere accident, and unaccountable.

The appellant having wholly failed to prove his case, the circuit court very properly ordered a verdict to be rendered for the respondent; and the judgment must be affirmed.

By the Oov/rb.— The judgment of the circuit court is affirmed, with costs.