31 Ind. App. 451 | Ind. Ct. App. | 1903
Appellee was plaintiff below, and sued appellant to recover damages for the alleged negligent failure to carry and deliver at the Union Stock-Yards, in Chicago, five ear loads of cattle in time for a particular market on a specified day.
The complaint was in two paragraphs. The first is based upon a written contract for the shipment of four car loads of cattle from Mooresville, Indiana, and the second is based upon a contract for the shipment of one car load of cattle from Martinsville, Indiana. Both of these contracts are made exhibits. The first may be designated as a “live stock contract” and the second as a “bill of lading.” The negligence complained of was the failure to ship and deliver the stock in time for the market of December 28, 1898; the appellant having received the stock on the 27th. The “live stock contract” contains the following stipulations: That “the said shipper has delivered to the said carrier live stock of the kind and number, and consigned and destined by said shipper as follows : Seventy-eight cattle, four cars cattle M. Dickson & Co., Or. J. C. Bohart Com. Co., Union Stock-Yards, Chicago, Illinois, for transportation from Mooresville, Indiana, to destination, if on the said carrier’s line of railroad,
The record shows that Martinsville and Mooresville are situate on the Indianapolis & Vincennes Bailroad, which is operated by appellant, and that it terminates at the Panhandle yards at Indianapolis. It is also shown that the appellant did not own or operate a line of road from Indianapolis to Chicago, and that freight shipped from
It is urged that the first paragraph of the complaint is bad, because it is averred that the appellant failed to transport the cattle in time for a certain market, when the contract sued on is not a contract to transport them in time for that or any particular market, but only to transport them within a reasonable time, if on appellant’s line of road, and, if not, to deliver them to a connecting carrier. The same objection is made to the second paragraph, on the ground that the bill of lading expressly stipulates that the appellant did not contract to ship the cattle by any particular train, or deliver them at their destination for any particular market. In each paragraph it is averred that appellant knew and understood that the appellee was shipping the cattle for the market in the forenoon of December 28, and that appellant knew the time of the opening of the market, and the manner of preparing cattle for sale thereat; also, that if the cattle had been shipped with reasonable dispatch, there was abundant time between the time they were delivered at the shipping'points for their delivery at Chicago for the market on the morning of the 28th of December. Counsel for appellant insist that these allegations are at variance
By its motion for. a new trial appellant attacks the action of the trial court in giving and refusing to give certain instructions, in modifying, and giving as modified, an instruction tendered by it, and in admitting certain evidence.
Upon request of appellee the court gave the following instruction: “In ease of a through contract by a railroad company to carry live stock from a shipping point on its line to a point on a connecting line, the subsequent carrier becomes merely the agent of the first or initial carrier for the completion of the contract, and for any loss or damages-occurring on the connecting line the initial line is liable as a principal for the acts of an agent. Therefore if you find from a preponderance of the evidence in this case that the defendant received and accepted the four cars of cattle set out in the first paragraph of the complaint, and the one car set out and mentioned in the second paragraph of the complaint, or either lot of said cattle, from the plaintiff, and contracted to carry said cattle and deliver the same at the Union Stock-Yards, in the city of Chicago, Illinois, as in said complaint alleged, then I instruct you that it was the duty of the defendant to carry said live stock to its destination without delay; and the fact, if you should find such to be a fact, that the delay in said live 'stock reaching its destination until about 5 o’clock on December 28, 1898, occurred while on some connecting line, over which said cattle were carried, would not release the defendant from liability for damages resulting from such delay, but the defendant would be answerable, as a principal, for such damages to the plaintiff as the unreasonable delay occasioned, if you find it was an unreasonable delay, and your verdict-should be in favor of
The general doctrine as to transportation by connecting lines, recognized by the Supreme Court of the United States, and also a majority of the state courts, is that each road, confining itself 'to its common law liability, is only bound, in the absence of a special contract, safely to carry over its own road and safely transfer to the next connect;
In Myrick v. Michigan Cent. R. Co., 107 U. S. 102, 27 L. Ed. 325, the rule is declared to be that, in the absence of a special contract, a railroad company, by receiving cattle for transportation over its own line, and other lines therewith connected, is only bound to carry the cattle over its own line, and deliver them safely to the next connecting carrier. In the same case it was also held that the receipt of the stock by the initial carrier does ziot of itself constitute a through contract.
In Massachusetts it is held that a railroad company receiving goods directed to a point beyond the end of its route is not responsible for its connecting carrier, unless it makes a positive agreement extending its liability. Burroughs v. Norwich, etc., R. Co., 100 Mass. 26, 1 Am. Rep. 78.
The case of McEacheran v. Michigan Cent. R. Co., 101 Mich. 264, 59 N. W. 612, is directly in point here, for the reason that the bill of lading contained provisiozis identical to those before us. The bill of lading showed the receipt of two carloads of lumber to be shipped from Essex Center, Michigan, to New York, and contained this provision: “If upon said company’s line of railroad; otherwise to the place where the property is to be received by the connecting carrier.” It was held that, though the initial carrier gave the shipper a through rate for freight, it could not be held liable as a carrier beyond its own line. See, also, Detroit, etc., R. Co. v. McKenzie, 43 Mich. 609, 5 N. W. 1031; Rickerson, etc., Mill Co. v. Grand Rapids, etc., R. Co., 67 Mich. 110, 34 N. W. 269; Alabama, etc., R. Co. v. Thomas, 83 Ala. 343, 3 South. 802; 6 Am. & Eng. Ency. Law (2d ed.), 639.
Our own courts have adhered to the rule that in the
The fact is undisputed that appellant’s line of railroad terminated at Indianapolis, and that it did not own or operate a line of railroad between Indianapolis and Chicago. It appears in evidence, uncontradicted, that it delivered the cattle at Indianapolis to a connecting carrier. By its contracts it only agreed to transport the cattle to the end of its line.
The instruction expressly charges that the connecting carrier was the agent of appellant in forwarding the cattle, and that appellant was liable for its acts, including delays, etc. This was misleading, and not applicable to the undisputed facts.
Counsel for appellee have not presented any argument in support of this’ instruction, but content themselves by saying that what they said in reference to the sufficiency of the complaint applies with equal force to the instructions. .There is a marked difference between the law questions arising under the demurrers to the complaint and that presented by the instruction.
Counsel for appellant has discussed other instructions, and also admission of certain evidence; but as the law applicable to the facts disclosed by the record is stated in what we have said in discussing the above instruction and must control in a subsequent trial, it is not necessary to decide other questions.
Judgment is reversed, and the trial court is directed to sustain appellant’s motion for a new trial.