Kibby v. Michigan Central Railroad ( 1905 )

Hooker, J.

On November 4, 1902, the plaintiff shipped from Lansing, Michigan, to the State' of Georgia, a car load of potatoes, in a car furnished by defendant for the trip. It was agreed that plaintiff should go in the car to keep fire, if necessary, to prevent the potatoes from freezing. It was stipulated that the car should be sent to Jackson, over defendant’s road, and it was to be forwarded from there over connecting roads agreed upon. A shipping order was signed by plaintiff, which by its terms provided:

“ It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained, both on the face and the back hereof, and which are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonáble.”

The following were among the conditions referred to:

“ 1. No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control; or by floods or by fire from any cause or wheresoever occurring; or by riots, strikes, or stoppage of labor; or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet or decay; or from any cause if it be necessary or is usual to carry such property upon open cars. * * *

“3. No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee.”

At Jackson the car was transferred to a train upon the Cincinnati Northern Railroad, and while in transit to Cincinnati the rain ran through the roof of the car, which was old and leaky, wetting the potatoes and causing them to heat and decay, so that the plaintiff lost about half of them.

This action was brought to recover damages for the value of the potatoes that were lost, expenses incurred in assorting and saving them, and a proportionate amount of the freight which the plaintiff was compelled to pay when the car reached its destination. The defendant has appealed from a judgment for plaintiff of $237.87.

The single question argued by defendant’s brief is that the conditions quoted limit its liability to damages sustained while the potatoes were being transported over its. road, for the reason that plaintiff has so contracted. It is raised by the refusal of the court to so instruct the jury to render a verdict for the defendant. We have repeatedly held that a carrier may stipulate for immunity from responsibility for damages resulting upon connecting roads after his discharge of his full duty of delivering them to another road. See the following cases cited by the defendant: Black v. Ashley, 80 Mich. 90; Smith v. Express Co., 108 Mich. 572; McEacheran v. Railroad Co., 101 Mich. 264; Hope v. Canal Co., 111 Mich. 209.

These cases do not militate against the plaintiff’s claim. The contract for defendant made it obligatory to furnish a suitable car for the entire trip, and deliver the car and cargo to the connecting line in good condition. It did not fully perform its duty of delivering to the connecting carrier the potatoes in a suitable car adapted to their transportation. This was a breach of their contract and they were liable for the consequences. See Searles v. Railway Co., 69 Miss. 186; Alabama, etc., R. Co. v. Searles, 71 Miss. 744; Shea v. Railway Co., 66 Minn. 102; Norfolk, etc., R. Co. v. Harman, 91 Va. 601 (44 L. R. A. 289); Norfolk, etc., R. Co. v. Sutherland, 89 Va. 703; Fox v. Railroad Co., 148 Mass. 220; International, etc., R. Co. v. Anderson, 3 Tex. Civ. App. 8.

The judgment is affirmed.

Moore, C. J., and McAlvay, Grant, and Blair, JJ., concurred.