30 Neb. 241 | Neb. | 1890
The plaintiff below alleged that the defendant is a railway corporation under the laws of the United States, doing business in this state as a common carrier of freight and passengers; that on December 30, 1885, by itself and its duly authorized agent, it received at Cambridge, Illinois, for transportation to Kearney, Nebraska, one hard coal base
It is alleged that the weight of the stove was 340 pounds; that he paid the defendant for transportation to Kearney, one and fifty-two hundredths dollars per 100 pounds; that the defendant did not safely transport the stove, but negligently and carelessly broke and destroyed the same while in its possession as such common carrier, and has not delivered it as it was bound to do, to the damage of the plaintiff of $40, with interest from January 12, 1886, and asks judgment therefor, and costs of suit.
Exhibit D.
“Rock Island & Peoria Railway Company,
“Cambridge, Ill., Jany. 1, 1886.
“ Received of Ira. D. Marston, by the Rock Island & Peoria Railway Co., the following property in apparent good order (except as noted), marked and consigned as in the margin, which they agree to deliver, with as reasonable dispatch as their general business will permit, subject to the conditions mentioned below, in • like good order (the dangers incident to railroad transportation, loss or damage by fire while at depots or stations, loss or damage of combustible articles by fire while in transit, and unavoidable accidents excepted) at Rock Island station, upon the payment of charges. The company further agrees to forward the property to the place of destination, as per margin, but are not to be held liable on account thereof after the same
“ Conditions : The company do not agree to carry the property by any particular train, nor in time for any particular mat ket. Oils and all other liquids at owner’s risk. Liquids in glass or earthen, drugs and medicines in boxes, glass and glassware in boxes, looking glasses, marbles, stoves, stove plates, and light castings, earthen or queens-ware, at owner’s risk of breakage.
“Agricultural implements, eabinetware and furniture not boxed, and carriages at owner’s risk of breakage or damage by chafing. Oysters, poultry, dressed hogs, fresh meat, and .provisions of all kinds, trees, shrubbery, fruits, and all perishable property at owner’s risk of frost and decay.
“ It is a part of this agreement that all other carriers transporting the property herein receipted for, as a part of the through line, shall be entitled to the benefit of all the exceptions and conditions above mentioned; and if carried by water, he is entitled to the further benefit of exception from loss or damage arising from collision, and all other damages incident to lake and water navigation. All freight not taken away on arrival will be stored free for twenty-four hours, after which regular storage rates will be charged.
“ Marks and Consignees : Ira D. Marston, Kearney, Neb.
“Agents will sign this form of shipping receipt, and no other, unless authority is given by the general freight agent. Agents will be particular to number both receipt and shipping bill, which must be alike.
“ Rate : 152 per cent from Cambridge, Ill., to Kearney, Neb.
“ Articles : 5 bx. books; one desk, boxed ; 1 blank case bks; 1 office chair, 1 stove; 1940 weight (subject to correction).
G. A. Cooper, Agent.
\ J
“On this twelfth day of August, 1886, personally appeared before me, G. A. Cooper, the signer of a copy of the bill of lading on the reverse side hereof, and, being duly sworn,' says that the said copy is a true copy of the original bill of lading as shown by the books of the Rock Island & Peoria Railroad Co. at their station.
“ Cambridge, Ill., August 13, 1886.
“ G. A. Cooper.
“Subscribed and sworn to before me, this 13th day of August, 1886.
W. H. Shepard,
“ Notary Public.”
The defendant answered that it is a railway corporation organized under the laws of the United States and that it has a defense to this action arising under said laws. Denying generally the allegations of the plaintiff, it says “ that the plaintiff entered into a contract with the Rock Island & Peoria Railway Company, for a certain 'price, whereby the said company agreed to transport the said stove; that neither the said railway company nor the Rock Island & Pacific Railroad Company, or either of them, were the agents of defendant at Cambridge, Illinois, or that they acted as its agents in receiving and delivering the said stove; that the defendant herein has no line of road in the state of Illinois, and did not receive the stove, as alleged, from the plaintiff at Cambridge, and made no contract or agreement of any kind in respect to transporting and delivering said stove. It has no-knowledge other than that derived from the plaintiff’s petition that the ‘Exhibit D ’ attached thereto is a true and accurate copy of the bill of lading or agreement between the plaintiff and the Rock Island & Peoria Railway Company, and therefore denies the same.
“ Defendant says that the said stove was not injured,
The plaintiff replied denying each and every allegation in the answer contained.
There was a trial to a jury, with findings for the plaintiff and damages assessed at $40.
At .the request of the defendant the jury returned special findings as follows: “ That the stove was broken between Cambridge and Kearney on the Union Pacific railroad, in the defendant’s possession, by reason of the negligence of the defendant.”
The defendant’s motion for a new trial being overruled, judgment was-entered upon the verdict, to which the defendant excepted on the record and brings it to this court on the assignments of error as follows:
“1. That the verdict is contrary to law and is not sustained by the evidence.
“ 2. That it is excessive, appearing to have been rendered under the influence of passion and prejudice.
“ 3'. ■ For errors of law occurring at the trial and duly excepted to by the defendant.
“4. In modifying instructions Nos. 1, 2,3, and 4, offered by defendant, and which should have been given without modification. ,
“5. In refusing instructions Nos. 6 and 7 asked by defendant.
“6. In giving plaintiff’s instructions Nos. 3 and 5.
“7. Because each of the special findings of the jury is not supported by sufficient evidence, and is contrary thereto.
“8. Because the- plaintiff was permitted to amend his petition by striking out the words { as per usual bill of lading.’
“ 9. In overruling the defendant’s motion for a new trial.”
It is clearly established by the pleadings and evidence that the defendant in error, being about to remove from
It appears that the paper handed to Marston by said station agent was a. receipt for the goods shipped by Mars-
This brings me to the consideration of- the instructions. Those given at the request of the plaintiff, defendant in error, are as follows:
“3. That if you believe from the evidence that the stove in question was damaged, and that such damage occurred on the line of the defendant and through the negligence or carelessness of its agents or employes, and while the goods were in defendant’s possession, you will hnd for the plaintiff, and assess his damages at such sum as the evidence shows him entitled to, not, however, exceeding forty dollars.
The defendant, plaintiff in error, then asked seven instructions. The fifth was given as asked, as follows:
“If you shall find that the rate as fixed in the shipping receipt, and as paid by the plaintiff, for the transportation of this stove, was what is designated as ‘owner’s risk’ rate, and that this defendant received the stove from the connecting line with that understanding, and carried it at that rate, then the plaintiff cannot recover, unless you shall find that the stove was broken through the negligence of the defendant on its line of road.”
The instruction numbered 1, asked by the defendant, was as follows:
“The jury are instructed that if you find that the agent at Cambridge, Illinois, issued and delivered to the plaintiff a bill of lading or shipping receipt for the goods in controversy, and that he accepted the same without any objection, that, so far as this defendant is concerned, it became and was the only contract of shipment, and by the acceptance thereof the plaintiff became bound by the terms and conditions therein contained. (Modified thus:) Except so far as such conditions by their terms may have undertaken to release the railroad from the consequences of negligence and carelessness. Any arrangement or agreement entered into by the plaintiff and said agent before the delivery of said bill of lading to said plaintiff cannot be binding upon this defendant, so far as such agreement contradicted the terms of, or was at variance with, said bill of lading or shipping receipt. (Modified thus :) If the agent at Cam
“ II. The jury are instructed that the mere fact that the plaintiff’s stove was delivered in a broken condition does not establish the plaintiff’s right to recover from the defendant, but in order to entitle the plaintiff to recover, it must appear that the stove was broken and damaged while in the hands of the defendant, and by its negligence, so that, unless you shall find that the stove was broken on the defendant’s line of road and through its negligence, your verdict must be for the defendant. (Modified thus:) If the stove was damaged because of the negligence or carelessness of the carrier when it arrived at Kearney, the burden of proof is upon the defendant to show that the damage did not occur upon its line.
“III. You are instructed that where a carrier receives and carries goods at a reduced rate, it is a sufficient consideration for limiting its liability, so that if you shall find that the rate paid by the plaintiff for the shipment of the stove was a reduced rate made for the purpose of limiting the liability of the carrier for damage for breakage, then the plaintiff, under the terms of his shipping receipt, cannot recover, unless you shall further find that the stove was broken while in the possession of this defendant, and that it was so broken by means of some actual negligence of this defendant. To hold the defendant guilty of negligence it must appear to your satisfaction that it failed to exercise ordinary care in the handling of the stove. (Modified thus:) Yet if the stove was broken when it reached Kearney because of the negligence and carelessness of the carrier, the burden of proof is upon the defendant to show that the damage occurred on-another line than defendant’s.
“IY. You are instructed that if you shall find that the plaintiff’s stove was received from the connecting line by the defendant at Council Bluffs in the broken condition in
It does not appear from the record whether the sixth and seventh instructions asked were given or not, and no exception being noted thereon, they will not be considered.
At the request of the defendant, plaintiff _in error, the court submitted to the jury the following questions for special findings of fact:
“1. On what part of the route between Cambridge and Kearney was the stove broken?
“ 2. Was the stove broken in any manner while in this defendant’s possession?
“3. Was the stove broken by reason of any negligence of the defendant?”
With a general verdict for the plaintiff and assessing his damages at $40, the jury returned special findings as follows:
“1. On what part of the route between Cambridge and Kearney was the stove broken? Answer. Broken on the U. P. R. R.
“2. Was the stove broken in any manner while in this defendant’s possession? Answer. Yes.
“3. Was the stove broken by reason of any negligence of the defendant? Answer. Yes.”
It appears from the bill of exceptions that the stove, although one that had been used two winters, was, at the time it was shipped at Cambridge, Illinois, in good condition ; that there was evidence tending to prove that at the time it arrived at Council Bluffs, the end of the Chicago, Rock Island & Pacific R. R. line, it was broken or
Under the instruction, number 5, given at tlie request of the defendant, independent of those given at the request of the plaintiff, or the modifications of the others requested by the defendant and given as modified, I think the' jury were justified in finding for the plaintiff, if such finding, as must be presumed, was confined to such damage to the stove as was caused after it was transferred to the defendant’s cars at Council Bluffs. This, it is true, depends upon the correctness of the proposition contained in the fifth instruction given at the request of the plaintiff: “ That when it is proven that the goods in question were in the possession of the defendant, and were damaged at some place on the route, then the burden of proof is upon the defendant to show that the damage occurred on some other than its line,.” This is admitted to be the law at p. 10 of the brief of plaintiff in error.
The questions whether the defendant company was bound to carry the plaintiff’s goods under the terms of the oral contract made between plaintiff and the agent of the Rock Island & Peoria R. R. at Cambridge, or whether, having, carried them in ignorance of such oral contract, it was not upon notice thereof, and that plaintiff claimed that the goods Avere shipped at carrier’s risk, entitled to charge its schedule rate for such carriage over its portion of the route, for goods of that class carried at carrier’s risk, do not arise in the case, and are not considered.
The judgment of the district court is
Affirmed.