61 Wis. 596 | Wis. | 1884
The following opinion was filed October 14, 1884:
Whether a railway company is under the same obligations to furnish cars for, and receive, safely carry, and store live-stock as other ordinary inanimate freight, is a question upon which much has been written, and some diversity of opinion has been expressed. It is not necessary here to analyze the adjudged cases, nor indicate the weight of reason or authority.
Betts v. Farmers' L. & T. Co. 21 Wis. 80, was an action for injuries caused by the carrier’s negligence in carrying the plaintiff’s cattle in a car with defective and imperfectly fastened dcjors, which were thrown open by the -motion of the cars so that the cattle escaped. The cattle were shipped under a special contract, which, among other things, provided that the company should “ not be liable for loss in jumping from the cars.” In that case, DixoN, C. J., giving the opinion of the court, said: “ As to this species of property we think it competent for the carrier to contract that the owner shall assume all rish of damage or injury,/rom whatsoever cause happening in the course of transportation.” See, also, C. & N. W. R. Co. v. Van Presar, 22 Wis. 511; Mor
It is well settled that a carrier of ordinary inanimate freight cannot by any agreement, however plain and explicit, wholly relieve itself from all liability whatsoever resulting from its own negligence. Black v. Goodrich Transp. Co. 55 Wis. 319. Just the extent that a carrier of such inanimate freight may by express contract exempt itself from liability for its own negligence need not here be determined. Certainly there is a broad distinction between the risks incident to the carriage of such ordinary inanimate freight, and that of live animals having instincts, habits, propensities, wants, necessities, and powers of locomotion. Eequisite care in case of the transportation of such live-stock, therefore, necessarily implies food and water periodically, and at times especial care and shelter outside of the vehicle of carriage. All these things would require help, appliances, conveniences, and extra arrangements not requisite in the case of ordinary inanimate freight, which a carrier might be un
. This broad distinction between that class of freightage and ordinary inanimate freight has frequently been observed by the courts. Blower v. G. W. R’y Co. L. R. 7 C. P. 655; Shir. Lead. Cas. No. 22, p. 50; Clarke v. R. & S. R'y Co. 14 N. Y. 570; Penn v. B. & E. R'y Co. 49 N. Y. 204; Cragin v. N. Y. C. R. R. Co. 51 N. Y. 61; Holsapple v. R., W. & O. R. R. Co. 3 Am. & Eng. R’y Cas. 487; Smith v. N. H. & N. R. R. Co. 12 Allen, 531; Evans v. Fitchburg R. R. Co. 111 Mass. 142; Michigan S. & N. Ind. R. R. Co. v. McDonough, 21 Mich. 189; Lake Shore & M. S. R. R. Co. v. Perkins, 25 Mich. 329. There would certainly seem to be no good reason why a carrier might not by express contract exempt itself from damage caused wholly, or perhaps in part, by the instincts, habits, propensities, wants, necessities, vices, or locomotion of such animals. Ibicl. As to injury from such causes the common law liability and obligation do. not seem to attach; certainly not with the same rigidity as they do to ordinary inanimate freight. Ibid. Thus, in a late case in Minnesota, it is held that “a railroad corporation which undertakes to transport live-stock for hire for such persons as chose to employ it, assumes the relation of a common carrier, with such modifications of the common law liability of carriers as arise from the nature of the animals and their capacity for inflicting injury upon themselves and upon each other.” Moulton v. St. P., M. & M. R'y Co. 12 Am. & Eng. R’y Cas. 13. To these things may well be added other things incident to live-stock.
As to the extent to which a carrier may limit its liability for injury caused by its own negligence, see the valuable
Manifestly, there is no special contract here alleged in the complaint. True, it is alleged that the agent was notified, and that he informed the plaintiff that he should have the cars on the day named; but there are no sufficient allegations to constitute any mutual obligations or binding contract. This is frankly admitted by the learned counsel for the plaintiff. Since the action is not based upon contract, the plaintiff must recover, if at all, by reason of the defendant’s liability as a common carrier, upon mere notice to furnish cars and a readiness to ship at the time notified. Did such notice and readiness to ship create such liability? We have seen that a carrier of live-stock may, to at least a certain extent, limit its liability. Whether the defendant was accustomed to so limit its liability or to carry all live-stock tendered upon notice, without restriction, does not appear from the record. If it was accustomed to so limit, and the limitation was legal, it should, at least, have been so alleged, together with an offer to comply with the customary restriction. If it was accustomed to carry all live-stock offered upon notice and tender, and without restriction, then it would be difficult to see upon what ground it could discriminate against the plaintiff by refusing to do for him what it was constantly in the habit of doing for others. But the difficulty here is that the plaintiff has failed to allege facts sufficient to bring his case within the rule suggested. He has not only failed to allege any such custom or holding out
• For the reasons given, the demurrer should have been sustained, with leave to the plaintiff to amend his complaint.
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.
A motion for a rehearing was denied December 16, 1884.
