Smitha v. Louisville & Nashville Railroad

86 Tenn. 198 | Tenn. | 1887

Tubney, C. J.

This action was brought to recover damages for injuring stock shipped from Nashville to Yicksburg over several lines of way.

There is proof tending to show the ' injury was the result of the negligence of the defendant’s agents, and change of cars in violation of the contract. The last clause of the contract is: “And for the consideration before mentioned, said party of the second part further agrees that, as a condition precedent to his right to recover any damages for loss or-injury to said stock, he will give notice, in writing, of his claim thereof to some- officer of said party of the first part, or its nearest station agent, before said stock is removed from the place of destination above mentioned, or from the place .of delivery of the same to said pax-ty of the second part, and before said stock is mingled with other stock.”

The Court charged: “A failure to give notice was fatal to plaintiff’s right of recovei-y; that the notice, though not reduced to writing, would he sufficient.”

This is error. The stipulation is uncertain and ambiguous. There is nothing by which it can he ascertained who is an officer, or what degree of agency, or what relationship any individual must hear to the corporation to he one of its officers, or make his position an office of the company. It does not give the name of the nearest station, or use such language as hy reasonable construction will designate a single agent to whom the notice shall be given, or which, is the nearest station of several in a city, nor at what terminus, etc. These things were known to the corporation, and should have been definitely set out if they can be enforced at all.

It is unreasonable in requiring the shipper to retain his stock at the place of destination or delivery, and unmingled with other stock, until the written notice shall have been given.

It is void, because it undertakes to protect the carrier from loss occasioned by his own fault, by imposing an unreasonable and difficult duty on the shipper as a condition. precedent to his right to suit, and that, too, when that duty is to communicate facts as well or better understood by the corporation than the shipper.

Such notice cannot possibly serve any good purpose, and will not be tolerated to entrap. Ve do not mean to hold that in no ease can a carrier stipulate for notice of loss or injury if it be reasonable, definite, and certain in its terms, pointing out specifically its mode of execution. The question does not arise.

Reverse and remand.