School District v. Boston, Hartford & Erie Railroad, 102 Mass. 552

School District v. Boston, Hartford & Erie Railroad

102 Mass. 552 | Mass. | 1869

Gray, J.

The declaration is in contract against the defendants as common carriers. It alleges that the defendants, as common carriers, received the plaintiffs’ castings, and agreed to deliver them to the plaintiffs at the place of destination, for a reasonable compensation; and that the castings, while in the care and custody of the defendants, and while they were responsible therefor, were broken and destroyed through the fault of the defendants and their servants. It thus in substance and effect alleges that the defendants as common carriers received the plaintiffs’ property and agreed to transport it for hire to its destination, and that it was injured and destroyed through their negligence. The form of the declaration is not to be com mended; but it was not demurred to in the court below, and *555cannot therefore be objected to in this court. The answer admits that the defendants received the castings for transportation as alleged in the declaration, that is to say, as common earners; and denies that the castings were broken or destroyed while in their care and custody, or while they were responsible therefor, either by the fault of themselves or their agents, or otherwise. The defendants at the trial objected to the case being argued to the jury on the issue of actual negligence on their part, upon the very ground that the declaration counted only on their liability as insurers, which is as much as' to say, as common carriers. And their bill of exceptions states that it was an action against them as common carriers. It is not therefore open to them now to deny that the declaration sufficiently charges them as common carriers for the injury of the plaintiffs’ goods. Alden v. Pearson, 3 Gray, 342. Batchelder v. Batchelder, 2 Allen, 105.

A common carrier is liable, in contract as well, as in tort, for goods received to be carried by him, and injured either by the negligence of himself or his servants, or by any other cause, except the act of God or public enemies. In a declaration in contract against a common carrier, it is common, though not necessary, to allege that the goods were injured by the negligence of himself and his servants. Dale v. Hall, 1 Wils. 281. Richards v. London, Brighton & Southcoast Railway Co. 7 C. B. 839. 2 Chit. Pl. (6th Am. ed.) 117. And under such a declaration actual negligence may be given in evidence. In Forward v. Pittard, 1 T. R. 33, Lord Mansfield summed up the law on this subject thus : “ It appears from all the cases for a hundred years back, that there are events for which the carrier is liable independent of his contract. By the nature of his contract, he is liable for all due care and diligence ; and for any negligence he is suable on his contract. But there is a further degree of responsibility by the custom of the realm, that is, by the common law; a carrier is in the nature of an insurer.” And in Trent & Mersey Navigation v. Wood, 4 Doug. 291, Mr. Justice Buller said : “ Negligence in point of fact should in general be proved, but negligence in point of law is sufficient if the facts proved show what the law calls negligence.” See also Smith v. *556Horne, 8 Taunt. 144; S. C. 2 Moore, 18. By the allegations in the declaration and the denials in the answer, negligence was put in issue; and if proof of actual negligence was not necessary to support the action, its admission affords the defendants no ground of exception.

The answer further alleges that the defendants used all reasonable and proper care and diligence in the charge, management and handling of the castings while in their possession and under their control; and that, even if they were broken or injured while so in their possession, still the defendants, while in the exercise of such reasonable care and diligence, were not liable for such injury, if any, because, by special contract between the parties, the same were taken at the owners’ risk of fracture or injury during the course of transportation, loading or unloading. But the special contract here set up is not alleged, and could not by law be permitted, to exempt the defendants from liability for injuries by their own negligence. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 383. Squire v. New York Central Railroad Co. 98 Mass. 239, and cases there cited. Pennsylvania Railroad Co. v. Butler, 57 Penn. State, 335. Welsh v. Pittsburgh, Fort Wayne & Chicago Railroad Co. 10 Ohio State, 65. In Wyld v. Pickford, 8 M. & W. 458, Baron Parke, speaking of a special contract, said : “ Probably the effect of such a contract would be only to exclude certain losses, leaving the carrier liable as upon the custom of England for the remainder.” See also Clark v. Barnwell, 12 How. 272, 280. It might perhaps be necessary, under the English practice, when a special contract is pleaded, that the plaintiff should file a replication alleging negligence. See Butt v. Great Western Railway Co. 11 C. B. 140. But under our practice act, no replication having been ordered by the court, the plaintiffs might, without further pleading, disprove the defendants’ allegation that they exercised reasonable and proper care and diligence. Gen. Sts. c. 129, § 23. If that allegation was disproved, the defence ‘bunded on the special contract was not sustained. Evidence of actual negligence was therefore competent and material on this issue.

*557The defendants must be confined to the objections made at the trial and stated in the bill of exceptions. No question was raised of the burden of proof; nor of variance between the contract alleged in the declaration and that set up in the answer. The only exceptions taken were to the refusal of the judge to sustain the objection that actual negligence was no ground for charging the defendants under a declaration counting on their liability as insurers; and to the instruction that, even if the jury found the special contract to have been made, the defendants would be still liable for negligence.

In the opinion of the majority of the court, and for the reasons already stated, both of these rulings were correct, and there is therefore no ground upon which the defendants’ exceptions can be sustained. Exceptions overruled.