Potts v. Wabash, St. Louis & Pacific Ry. Co. , 17 Mo. App. 394 ( 1885 )

Opinion by

Ellison, J.

Though this presents a case for our determination, somewhat peculiar and not free from doubt, we are left without assistance from plaintiff’s counsel, as he has not given us the benefit of his researches by filing a brief in the case. Its solution would not be attended with difficulty, were it not that a special contract is insisted on as being an exemption from liability on account of any loss arising from the condition of the car. And that plaintiff being aware of the condition of the car, nevertheless, attempted himself to remedy the defect and shipped his stock. •

Recourse, however, to the principle upon which the obligation of a common carrier rests, will guide us to a proper conclusion

In the language of Judge Scott in 10 Ohio Stat. 65, the obligation of a carrier is: “At common law, as it has been long settled that the common carrier is responsible for the safe transportation and delivery of goods received by him for carriage, and can only justify or excuse a default when occasioned by the act of Gfod or the public enemies, he is not only responsible for his own acts of misfeasance, malfeasance, and negligence in the course of his employment, but he is also regarded as an insurer against all loss or damage which may happen to goods whilst in his charge, for the purposes of his employment, though occasioned by unavoidable accident, or by any casualty whatever, except only as above mentioned. And the burden of proof is thrown upon him, in bringing-any particular case within the exceptions. For,, in the absence of proof, the loss itself raises the presumption of negligence on the part of the carrier.”

This strict rule of law arose from necessity, and its wisdom is conceded. Yet it is held, that the parties, the carrier and shipper, may, by special contract, limit this liability in everything not trenching on the- requirement of a just public policy. And while in some jurisdictions these special contracts may extend to- exempting the carrier from negligence of himself or servant; it is considered in this state, and most others in America, that a stipulation of exemption for negligence is void and against public policy. So if we admit the contract in this case, in terms, covers the absence of slats in the car furnished plaintiff, it was not competent for .the parties to enter into snch a stipulation of release. It is a primary duty of common carriers to furnish vehicles suitable in every respect, including strength and mode of construction, for the safe transportation of such property as is usually carried by them. The very fact of them holding themselves out as engaged in such business, implies that they are prepared in all ways, to carry on the traffic safely and securely. It is their duty to furnish patrons with vehicles of snch strength, durability, and construction a& to afford safe conveyance; and it is negligence of which they cannot relieve themselves not to do so. There is no legal objection to contracts reasonable in themselves, which relieve corporations of many onerous duties, otherwise to be performed. And so they may relieve themselves of many responsibilities connected with the shipping of live stock. Indeed a carrier would not be -liable, in the absence of a contract, for an injury to animals resulting from their own inherent propensities. But the proposition that he shall provide himself with suitable, safe, and secure cars, or other mode of transportation, and that it is his first and imperative dnty so to do, is not only one of reason arising from the necessity of his calling, but it is abundantly sustained by text writers and adjudications. — Propeller Niagara v. Cordes, 21 How. 23; The Northern Belle, 9 Wal. 526; The C. & A. Ry. Co. v. Burke, 13 Wend. 611; Lyon v. Mells, 5 East. 428; Smith v. New Haven Ry. Co., 13 Allen 531; Hutchinson on Carriers, sects. 292-3; Angell on Carriers; Story on Bailments, sects. 509, 562, 592.

And a contract, though signed by the shipper, agreeing to release the carrier, will not exonerate him from resulting damage or from his implied dnty to furnish suitable means to safely transact his business.— Welsh v. Ry. Co., 10 Ohio St. 65; I. B. & W. Ry. Co. v. Strain et al., 81 Ill. 504; The C. & A. Ry. Co. v. Burke, 11 Wend. 611; Story on Bailments, sect. 571 a.

And, so even if a carrier furnish defective vehicles, even though they be cars for cattle, which cars the shipper himself sees, and which cattle he attends, the carrier is not exonerated from, responsibility, even though there has been an agreement that he shall not be responsible. —Railroad Co. v. Pratt, 22 Wal. 123.

The authorities cited by defendant do not bear out its case. The case of the I. C. R. R. Co. v. Hall (58 Ill. 410), says: “The car of the Michigan Central was selected by one of the plaintiffs, he refusing to use the cars of the defendant. If hogs escape from the car by reason of any defect in them, or of the door fastenings, the defendant would not be responsible if it did not know of it when plaintiff selected them.” ■ So with the case of Betts v. The F. L. & T. Co. (21 Wis. 87); here the plaintiff did not inform the station agent of the company of the defect which he saw. If he had wished to hold the company he should have informed the station agent of the unsafe condition of the door. The case of Hawkins v. G. W. R. R. Co. (17 Mich. 63, and 18 Mich. 433) looks a little in the direction of plaintiff’s view of the case. The court there says it is the duty of the company to furnish safe cars, and unless some showing was made that plaintiff knew of the defective condition and assented to the use of them, he was entitled to expect that suitable cars would be furnished. In the case before us, plaintiff did not “assent” to the use of this car; he protested; and as there was none other furnished on his demand, he allowed his cattle to be moved. He only used it from necessity of his situation. If, by the phrase “assented to the use of the car,” the Michigan court intended to say that the use of them with knowledge of their condition would bar plaintiff’s action, we do not agree that such would be the law. The court also says, that furnishing a defective car was negligence, and with us, as we have seen, a special contract will not relieve against negligence. In the case of Miltimore v. C. & N. Ry. Co. (37 Wis. 190), the car was not complained of, it was a safe and a proper one, but plaintiff assumed to load it with his covered wagon, and did not do so properly; this, of course, does not reach the question here.

So we regard the case of Sloan v. The St. L. K. C. & N. Ry. Co. (58 Mo. 220) as being against defendant’s theory. There the court says: “Upon principle it would seem that it was the carrier’s business to have vehicles suitable for the transportion of the hay, and if any loss occurred by reason of defects in the cars, the responsibility would rest on the carrier. But the shipper is not to judge whether the cars are sufficient. The carrier is the sole -judge of sufficiency of the vehicles in which it is proposed to carry freight. It does not appear that the attention of the defendant was called to the deficiency in the cars, or that the defendant was requested to furnish others.” This extract from the opinion, which was embodied in defendant’s brief, we take to be a strong authority for plaintiff, for it is plainly stated to be the duty of the carrier to furnish suitable cars, and that the carrier, not the shipper, is to judge whether they are ■sufficient.

The instruction given by the court on the question of notice of the loss to the company was justified by the ruling of the Supreme Court of this state in analogous cases. Such stipulations in contracts while held to be reasonable and such as will be enforced, are not such but that the defendant may waive by words or conduct.

The judgment is, with the concurrence of the other judges, affirmed.