59 Kan. 23 | Kan. | 1898
The defendant in error shipped his race horses, over the line of railway of plaintiff in error, from Fredonia to Pittsburg, Kansas. At the intermediate station of Columbus, the train upon which the animals were carried negligently collided with another train of the plaintiff in error. The horses were injured as a result of the collision. A suit for damages was instituted and a verdict and judgment for plaintiff were rendered. From this judgment the defendant below prosecutes error to this court.
The claims of error are based solely upon instructions given and requests for instructions refused.
Form 34^.
“ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY.
* RULES AND REGULATIONS POR THE TRANSPORTATION OP LIVE STOCK.
“ Live Stock, L. C. L., of all kinds, at the following-estimated weights : One horse (gelding and mare) or pony, mule or horned animal, 2,000 lbs. ; two animals, 3.500 lbs. ; three, 5,000 lbs. ; each additional animal, 1,000 lbs. Bulls, 2,000 lbs. each. Burros, 750 lbs. each. Calves (under 1 year), 500 lbs. each. Colts (under 1 year), 750 lbs. each. Cow and calf together, 2.500 lbs. Goats in crates, estimated weight, 200 lbs. each. Plogs, actual weight. Mare and colt (colt under 1 year), together, 2,500 lbs.; each additional colt (under 1 year old), 500 lbs. Sheep, 200 lbs. each. Stallions or jacks, 3,000 lbs. each.
“In case the owner or consignor agrees to save the St. Louis & San Francisco Railway Company from liability for any or of all the causes enumerated in the following contract, .and also agrees to load, unload, feed, water and attend to the stock himself, etc., as specified therein, the Special Rates of Tariff based on such contract, will be given.
“The said St. Louis & San Francisco Railway Company, as aforesaid, will not assume any liability in excess of the following valuation by shippers : Each horse or pony (gelding, mare or stallion), mule or jack, $100 ; each ox or bull, $50 ; each cow, $30 ; each calf, $10 ; each hog, $10 ; each sheep or goat, $3.
“Where the declared value exceeds the above, an addition of twenty-five per cent, will be made to the*25 rate for each one hundred per cent, or fraction thereof of additional declared valuation per head. Animals exceeding in value $800 per head will be taken only by special arrangement.”
Immediately below the above rules and regulations was the contract proper, in the following form :
“LIVE-STOCK CONTRACT.
“ No. of cars, 16389. Initials, A. F.
Fredonia, Kans., Station, August 14, 1892.
“This agreement, made between the-St. Louis & San Francisco Rly. Co. of the first part and Wm. Sherlock of the second part, witnesseth : That whereas the said St. Louis & San Francisco Railway Co., as aforesaid, transports live stock only as per above rules and regulations, now, in consideration that the said party of the first part will transport for the party of the second part one car loads of horses to Pittsburg, Kansas, station, at the rate of 26.75 dollars per car load, the same being a special rate, lower than the regular rates mentioned in their tariff, the said party of the second part hereby releases said party of the first part from the liability of a common carrier in the transportation of said stock, and agrees that such liability shall be only that of a private carrier for hire, and from any liability for any delay in shipping said stock after the delivery thereof to the agent of said party of the first part, or for any delay in receiving the same after being tendered to said agent.
“The evidence that the said party of the second part, after a full understanding thereof, assents to all the conditions of the foregoing contract, is his signature hereto. J. D. Lingeneelter,
Agent for St. Louis & Sau Francisco Railway Company.
Wm. Sherlock, Shipper.
Witness : J. W. .Lingeneelter.
(To be other than either of the contractors.)
“Executed in duplicate.”
It is contended on behalf of the plaintiff in error that the declaration made in the contract proper, above quoted, that the railway company “ transports live stock only as per above rules and regulations,” incorporated such rules and regulations, by the refer
Well considered cases have held that matter not printed or written in the instrument to which the shipper affixes his signature, but referred to as appended to it, or to be found on the back of it, cannot be thus incorporated by such reference as an integral part of the contract. Ormsby v. U. P. Rly. Co., 4 Fed. 710; Railroad Co. v. Manufacturing Co., 16 Wall. 319. We may, however, for the purposes of the law as we find it, concede the correctness of the interpretation which plaintiff in error places upon the contract in question,— concede that the contract proper incorporates by reference thereto .the printed rules and regulations and that the two in combination make but a single instrument.
The common law imposes upon a common carrier the obligation to safely transport and deliver the goods of the public generally, and for a failure to do so compels it to respond in damages to the extent of the losses sustained. These rules of duty and liability are fixed in considerations of public good, and do not arise ex contractu. The policy of the law attaches the obligation and responsibility in question to the
The question whether upon common law principles a common carrier may stipulate with the shipper for exemption from its common law liabilities is a vexatious and confusing subject of controversy in the courts. By some it is held that the public nature of the business of carrying imppses upon those who assume the conduct of such business, the obligations named, from which they can relieve themselves by no act of their own ; that such obligations are conditions annexed to the office, from which the carrier can be exempted only by legislative enactment. Other and perhaps a greater number of cases hold that, while the law will not permit the carrier to contract for immunity from the con - sequences of its own negligence, it will allow it to agree with the shipper upon the extent of its liability in case of loss by the acts of others or by its own non-negligent
“No railroad company shall be permitted, except as otherwise provided by regulation or order of the board [of Railroad Commissioners] to change or limit its common law liability as a common carrier.”
The common law liability of railroads as common carriers was to make the shipper whole by payment in full for property lost or damages to the extent of the injuries sustained. If, formerly, this liability could be limited by contract with the shipper, it can be done so now, as a matter of legal right, only by the permission or order of the Board of Railroad Commissioners. No such order or permission has been given ; at least the giving of it is not claimed.
The judgment of the court below is, therefore, affirmed.