75 Neb. 464 | Neb. | 1906
In their petition filed in the district court, Thompson and Tierney alleged that they delivered certain stock to the Union Pacific Railroad Company at Oconto, Custer county, Nebraska, for shipment to South Omaha; that the stock was delivered to the defendant company at 2 o’clock in the afternoon of March 24, 1903, and that it was careless and negligent in not transporting and delivering said stock at South Omaha by 2 o’clock in the morning of the 25th of March, 1903; that defendant carelessly and negligently kept the said stock in the cars and on the road until 6 o’clock in the evening of the 25th of March; that the stock did not reach South Omaha until after the market had closed on the 25th, and plaintiffs were compelled to keep the stock over and to sell the same on the 26th at 15 cents a hundred less than they would have brought on the 25th, in consequence of a decline in the market. A claim is also made for shrinkage of the stock, and for damages to one
A motion was made to suppress depositions taken by the plaintiffs upon the ground that they were taken before the action was pending in the district court, and that they were not addressed to the clerk of the court in which the action was pending, and that they did not remain under seal until opened by the clerk of the court to which they were addressed, and for the further reason that they were not properly certified. The case was originally tried in the county court, where the depositions of Walter E. Wood and Bruce McCulloch were offered in evidence and read. These depositions were taken in South Omaha on notice given by the plaintiffs, the notice stating that they were to be used on the trial of a case pending in the district court for Custer
It is objected that there is not sufficient evidence to sustain a finding that the defendant company was negligent in operating the train upon which the plaintiff’s stock was shipped, or in failing to use due diligence in avoiding delays in reaching South Omaha. We do not care to review the evidence on this question. Between Kearney and South
The defendant company tendered the following instruction based upon the clause of the shipping contract above referred to: “You are instructed that the evidence shows conclusively that no claim was made to the agents or officers of the defendant company prior to the mingling of the stock in question with other stock, and you will therefore find for the defendant.” The court refused this instruction, and error is predicated thereon. We will again repeat the clause of the contract under which it is claimed this instruction was brought: “Unless claims for loss, damage or detention are presented within ten days from the time of the unloading of said stock at destination and before said stock has been mingled with other stock, such claims shall be deemed to be waived, and the carriers and each thereof shall be discharged from liability.” Section 4, article XI of our constitution provides that “the liability of railroad corporations as common carriers shall never be limited.” The district court undoubtedly took the view that this clause of the contract was an attempt to limit the common law liability of the carrier. It is not an open question in this state that common carriers cannot, by contract, limit their common law liability. If the question had not been foreclosed by a prior decision, we would incline to the holding that the clause above quoted does not encroach upon this rule. There is no attempt, in our judgment, to limit the common law liability of the carrier for damage sustained in consequence of its negligence. The carrier, by this clause, attempts to protect itself from fraud and imposition by being notified of any claim for damages, which the shipper may have, before the stock is mingled with other stock, in order that it may be inspected and evidence of its condition secured. It recognizes the liability of the carrier, but provides for prompt notice. In Sprague v. Missouri P. R. Co., 34 Kan. 347, a similar contract was enforced, and held not to be an attempt to relieve
“It was there, as here, urged in support of the reasonableness and justice of the regulation, that the defendant was, at the time of the alleged injury, engaged in transporting great numbers of cattle and horses over its line of road, and which were being shipped to different points thereon, and that it would have been impossible for it to have distinguished one carload from another, unless its attention was called immediately thereto, and that the object of the notice and demand mentioned in the contract was to relieve it from any false or fictitious claim, and to give it an opportunity to have an inspection of the stock before they were removed or mingled with others, and the company could thus have an opportunity to ascertain and allow the actual damages suffered. These reasons are said to be cogent and the agreement is there held to be reasonable, just and valid. The decision in that case governs the one at bar, and the view which we have taken of the validity of this limitation accords .with the decisions of other courts, among which the following may be cited: Rice v. Kansas P. R. Co., 63 Mo. 314; Oxley v. St. Louis, K. C. & N. R. Co., 65 Mo. 629; Southern Express Co. v. Caldwell, 21 Wall. (U. S.) 264; Dawson v. St. Louis, K. C. & N. R. Co., 76 Mo. 514; Texas C. R. Co. v. Morris, 16 Am. & Eng. R. Cas. (o. s.) 259, and cases there cited.”
To the same effect is Wichita & W. R. Co. v. Koch, 47 Kan. 575, and Kalina v. Union P. R. Co., 69 Kan. 172, 76 Pac. 438. In the case last cited it was held: “Where the shipping contract contains a lawful provision requiring the shipper to do something as a condition precedent to recovery, the burden of showing the performance of such condition rests upon the shipper, and if he fail to show performance he cannot recover.”
Our own court has apparently taken a different view of this class of contracts. In Missouri P. R. Co. v. Vandeventer, 26 Neb. 222, the following clause of a contract was
The court in its 14th instruction told the jury in plain terms that, where the shipper agrees, as in this case, to personally accompany and care for his live stock transported by the raihvay company and is given free transportation for that purpose, he cannot complain of any injury arising from his OAvn fault in caring for the stock. The evidence is clear that no complaint Avas made to those in charge of the train that the coav above spoken of was down, nor was any request made of those in charge of the train to assist in helping her up. It is quite clear, therefore, that the jury could not have taken into consideration the damage to this coav in arriving at its verdict. The evidence relating to damages from shrinkage and from the generally bad condition of the stock fully justifies the amount of the verdict, and we recommend an affirmance of the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.