82 Neb. 464 | Neb. | 1908
The plaintiff, Charles O. Whitnack, recovered a judgment against the defendant railway company for damages to a shipment of potatoes while in transit from Omaha,
In February, 1905, plaintiff shipped from Omaha, over defendant’s line of railway, two car-loads of potatoes consigned to himself at Fort Worth, Texas. Defendant’s line of railway extended no further than Kansas City, Missouri, and from that point the potatoes were to be carried over the line of the Missouri, Kansas & Texas Railroad. The weather was very cold, and, to prevent the potatoes from freezing, it was arranged 'that a caretaker should accompany the shipment and keep a fire in each of the cars. The potatoes, which were in bags, were so placed in the cars as to leave an open or vacant space in the center of each car. In these vacant spaces oil stoves were placed and lighted to keep the cars warm. A. C. Brown was employed by the plaintiff as 'caretaker to accompany the 'potatoes, and to attend to the stoves and see that they were kept filled and burning. The potatoes' in charge of Mr. Brown reached St. Joseph, Missouri, in good condition. At this point the train was stopped for some time. Mr. Brown refilled the stoves and adjusted the wicks preparatory to continuing the journey. As the train was leaving St. Joseph, Brown discovered that one of the cars was missing from the train. He made inquiries of the train crew; but received no information as to the missing car. The train was in motion, and he was informed that, if he was going on that train, he must get aboard. He got aboard the train, and proceeded on the journey with but one car. The other car, having been cut out of the. train at St. Joseph, was left behind. Brown reached Fort Worth with the one car of potatoes in good condition. The other car-load of potatoes, with which we have to deal in this case, reached their destination several ddys later badly frozen and wholly worthless.
The plaintiff contends that the contract for the transportation of the potatoes was for a through shipment, while the defendant contends that the contract of the
The question is: Does the bill of lading constitute the contract of shipment, or may the plaintiff rely upon the prior oral agreement which preceded the making of the written contract? No doubt exists that an oral contract for the transportation of freight would be valid, but the question is not whether an oral contract would be valid, but whether a written contract was made. That such a one was made is beyond question. May a written contract be disregarded and set aside when it contains many provisions which cannot be given effect because they are wholly inapplicable to the subject matter of the contract? The rule of law is general that, where a written contract has been made between the parties, it cannot be altered or contradicted by parol, and that all oral negotiations leading up to the making of the written contract are merged therein, and this rule is applicable to bills of lading. 6 Cyc. 427. It was clearly the intention of the parties that there should be a written contract, and one was deliberately made and entered into. The fact that the contract contains many provisions which cannot be given effect, and which it is apparent were never intended to bé given effect, does not appear to be any sufficient reason for holding the contract invalid, or to justify setting aside and disregarding the provisions which are applicable to the subject matter of the contract. A bill of lading is an instrument issued by a carrier to the consignor, consisting of a receipt for the goods and an agreement to carry them from the place of shipment to the place of destination. 6 Cyc. 417, and cases there cited. The language
The bill of lading in the case at bar contains the following provisions: “Nor shall said railway company be liable for loss or damage after delivery to any connecting line, nor for any loss or damage not incurred upon its own line.” The defendant contends that the evidence shows that the loss or damage complained of occurred after the delivery of the potatoes to the Missouri, Kansas & Texas Railway Company at Kansas City, and that, under the provisions of the contract above quoted, it is not liable to the plaintiff in this case. The evidence shows that the oil stoves used to keep the potatoes warm would ordinarily burn about 12 hours, and the evidence shows that the stove in the car that was left at St. Joseph was filled and lighted about 12 or 14 hours previous to its being turned over to the connecting carrier at Kansas City. The defendant argues that the presumption is that the stove continued to burn and keep the car warm, and that the potatoes were not frozen while in its possession. The evidence also shows that the potatoes remained in the yards of the connecting carrier at Kansas City for several days, and that the car when received by it at Kansas City was in bad condition; that several of the boards constituting one end of the car were broken, thus exposing the interior of the car to the cold air. The weather was shown to have been extremely cold during the time the potatoes were in the yards of the connecting carrier at Kansas City. It is not clearly shown from the record when the potatoes froze, whether they suffered from the cold prior to the time they were delivered to the connecting carrier or afterwards. We do not think, however, that this is material.
The rule both at common law and in this state is that a
Defendant urges that the record is silent as to what
The trial court instructed the jury, in effect, that if one suffers damage as the proximate result of the concurrent negligence of two other parties, and if the damage would not have occurred from the negligent act alone of either party, then both would be liable to the party injured. Defendant assails this instruction which submitted the question of concurrent liability, because no concurrent negligence of the defendant and the connecting carrier was pleaded. It is apparent from the pleadings and the evidence that the defendant attempted to shift the responsibility for the damage to the connecting carrier, and it was doubtless to meet this phase of the case that the instruction was given. We think it is immaterial that the plaintiff did not plead concurrent negligence on the part of the connecting carrier, nor is it necessary for us to determine whether the evidence disclosed any negligence upon the part of the connecting carrier. The instruction placed no greater burden upon the defendant than the law required. Under this evidence the defendant could not be held liable unless it was negligent, and then only in the event that the loss would not have occurred except for the negligence of the defendant. The instruction as an abstract proposition of law appears to be sound, and we are unable to perceive wherein it was prejudicial to the defendant, and, in view of the defendant’s attempt to shift the responsi
Defendant has criticised the rulings of the trial court in the giving and the refusal of several other instructions, but the question of the correctness of these rulings is disposed of by the foregoing discussion, and it is not necessary to further refer to them.
We fail to discover any prejudicial error in the record, and therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.