Squire v. New York Central Railroad

98 Mass. 239 | Mass. | 1867

Gray, J.

The law is now well settled that, in the absence of any statute upon the subject, common carriers may by specia. contract limit their liability, at least against all risks but their own negligence or misconduct. New Jersey Steam, Navigation Co. v. Merchants' Bank, 6 How. 382, 383. York Co. v. Central Railroad Co. 3 Wallace, 107. Peek v. North Staffordshire Railway Co. 10 H. L. Cas. 493, 494. Peninsular & Oriental Steam Navigation Co. v. Shand, 3 Moore P. C. (N. S.) 293, 294. Judson v. Western Railroad Co. 6 Allen, 489, 490. Ellis v. American Telegraph Co. 13 Allen, 234.

The special contract on which the defendants rely declares that they transport cattle and other live stock “ only at first class rates as per tariff, excepting in the following cases, viz., where they transport them at a reduced rate, in consideration of the owner or shipper assuming certain risks, as specified below; ” and that, in consideration of their agreement to transport four car loads of hogs from Suspension Bridge to Albany at the reduced rate, the other party agrees that their liability shall be limited in various respects, which require separate consideration.

The stipulation that they should not under any circumstances be held liable beyond the sum of two hundred dollars for injury to or loss of any single animal was a proper and lawful mode of securing a due proportion between the amount for which they might be responsible and the freight which they received, and of protecting themselves against extravagant and fanciful valuations. Clay v. Willan, 1 H. Bl. 297. Harrison v. London, Brighton & Southcoast Railway Co. 2 Best & Smith, 122. Orange County Bank v. Brown, 9 Wend. 115. The provision by which the owner or shipper agrees to take the risk of injuries to the animals in consequence of their own intrinsic defects differs but little, if at all, from the rule of law in the absence of any contract. Smith v. New Haven & Northampton Railroad Co. 12 Allen, 531. The putting upon the owner the risk of loss or damage by delay to things so subject to extraordinary injury or expense from that cause as live animals was certainly not unreasonable.

The owner also agrees to take the risk of injuries which the animals may receive “ in consequence of heat, suffocation, or of being crowded, or on account of being injured, whether such injury shall be caused by the burning of hay, straw, or any other material used for feeding said animals, or otherwise.” It might not be easy, and in this case is not necessary, to define with accuracy the limits of the operation of the latter part of this clause. It could not, consistently with American decisions of high authority, be held to imply an exemption of the carriers from the consequences of their own negligence or misconduct. New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 383, 384. Sager v. Portsmouth Railroad Co. 31 Maine, 228. Wells v. Steam Navigation Co. 4 Selden, 375. Neither does this ease call for any opinion upon the validity or effect of the subsequent distinct stipulations that the owner shall take all risk of injuries happening in consequence of defects in the floor, frame or doors of the cars, and that the person in charge of the animals shall take all risk of personal injury from whatever cause, whether negligence of the carriers or their agents, or otherwise.

It is the first part of the clause just quoted, which is immediately involved in this case, by which the owner or shipper agrees to take the risk of injuries to the animals “ in consequence of heat, suffocation or of being crowded.” He also agrees to load and unload the animals at his own risk, to examine the cars on which they are to be carried, and to go or send one or more men in the same train (who are to be carried free of fare) to take charge of them. The only cause of injury to the plaintiffs’ hogs, which the evidence offered at the trial tended to prove, was suffocation by overcrowding and want of ventilation. We are unable to see anything contrary to the policy of the law in permitting the parties to agree together that, in consideration of the payment of a reduced rate of freight, a person who delivers property of this nature to a carrier, to be .aden and transported under the immediate charge of himself or his agent, in cars which he has an opportunity of examining, should bear the risk of injuries resulting from the size and mode of construction of the cars and the manner of stowing the property. A similar contract has been held valid and binding to this extent by the supreme court of Vermont. Kimball v. Rutland & Burlington Railroad Co. 26 Verm. 247. And in New York, where fch 3 contract in question was made and to be performed, and by the law of which, as was agreed at the argument, the rights of the parties are to be regulated, contracts exactly like this have been held by the court of appeals to be lawful and conclusive, both as to the risks to which the animals are exposed and as to injuries to the person travelling in charge of them. Bissell v. New York Central Railroad Co. 25 N. Y. 442, and cases cited.

The English cases cited for the plaintiffs arose under the St. of 17 & 18 Vict. c. 31, § 7, by which carriers are allowed to mqke such special contracts only as shall be adjudged to be just and reasonable by the court before which the question may arise. Peek v. North Staffordshire Railway Co. 10 H. L. Cas. 473. In Gregory v. West Midland Railway Co. 2 H. & C. 944, the contract was held by its terms to exempt the carriers from all responsibility whatever, and to be therefore unreasonable. In Allday v. Great Western Railway Co. 11 Jur. (N. S.) 12, the contract which was held to be unreasonable undertook to exempt the carriers, among other things, from risks of “ overcarriage,” or “ any other cause whatsoever; ” and the damage sued for was occasioned by carrying the cattle beyond their destination. Even in that case, Lord Chief Justice Cockburn said, “ If it could really be shown that the company had undertaken to carry the cattle at lower rates than they were legally entitled to, in consideration of the owner being content to take his chance of the due arrival and safety of his property, I think, under such circumstances, they would have been protected.” And in Paddington v. South Wales Railway Co. 1 H. & N. 392, it was adjudged that a clause like that now before us was reasonable, and exempted the carriers from liability for loss by suffocation of cattle put by them, not into proper cattle trucks, but into vans closing with lids, one of which became closed on the journey while the servant travelling in charge of the cattle was in another car. See also Beal v. South Devon Railway Co. 5 H. & N. 875, and 3 H. & C. 337.

In the case at bar, the evidence introduced by the plaintiffs showed that the agent sent by them to attend the hogs on their transportation, after receiving notice from the superintendent of the defendants’ yard that it was his turn to load, permitted their laborers to load the hogs without first himself examining the cars, observed the overcrowding and want of ventilation after the loading was finished and ten or fifteen minutes before the starting of the train, yet did not mention it to the superintendent or any other officer of the defendants, but procured a pass at the ticket office, there signed this agreement in the name of one of the plaintiffs, supposing it to be some contract about the hogs, without reading it or informing himself of its contents, went upon the train, and proceeded on the journey, and, although he perceived the hogs to be suffering from the confinement, spoke°to the conductor about it, and asked at Rochester to have them transferred to other cars, yet, on being told there were no other cars there, did not insist on having the cars containing the hogs detached and left, but went on with them to Albany. Even if he had no express authority from the plaintiffs to sign any contract relating to their transportation, he was the person in charge of the property, and the only one with whom the defendants could make the necessary arrangements, and stood towards them for this purpose in the position of an owner. York Co. v. Central Railroad Co. 3 Wallace, 113. There is no evidence of any fraud on the part of the defendants or their agent or clerk, such as representing that the paper was of no consequence, as in Simons v. Great Western Railway Co. 2 C. B. (N. S.) 620, cited for the plaintiffs.

Upon these facts, we are of opinion that this action cannot be maintained. The contract so signed, by which the defendants agreed to carry the plaintiffs’ property at a reduced rate (of which the recital in the contract itself is sufficient evidence) in consideration of being exempted from certain risks, and such exemptions being lawful and reasonable, at least to the extent involved in this case, and this contract having been acted on by the defendants in transporting the animals, and by the plaintiffs’ agent in accompanying them in the transportation, must be treated as constituting the only contract or relation between the defendants and the plaintiffs, by the lawful provisions of which both parties were bound. The plaintiffs became liable to the defendants for the reduced rate of freight only; and cannot hold them to a responsibility for injuries arising from overcrowding and suffocation, from which they had stipulated, in consideration of such reduction, to be exempted, and to which the negligence of the person sent by the plaintiffs themselves to attend the transportation contributed.

Exceptions overruled.