Pratt v. Ogdensburg & Lake Champlain Railroad

Morton, J. We are of opinion that several of the rulings at the trial of this case were erroneous, and that therefore a new trial must be granted. 1. Evidence of the declarations and admissions of Hobart was incompetent against either defendant. They were not declarations accompanying or forming part of any official act, and not within the scope of his authority. Such declarations are mere hearsay, and inadmissible against the principal. 1 Greenl. Ev. § 113. Nutting v. Page, 4 Gray, 581. Fogg v. Pew, 10 Gray, 409. Bank of Brighton v. Smith, 12 Allen, 243. 2. The defendants asked the court to rule that, if the plaintiffs put hay or other combustibles into the car, in violation of the rules of the defendants, or if, independently of the rules, [566] they did this negligently and wrongfully, and it occasioned the fire, they cannot recover. The court, in answer to this request, instructed the jury that, if the plaintiffs knew of the rules, and, in violation of them, put hay or other combustibles in the cars without the defendants’ consent, and this occasioned the loss, they cannot recover. This instruction was correct as far as it goes, but it failed to meet a material part of the defendants’ prayer, and was not sufficiently full. If the plaintiffs did not know the rule, they would be in no better position than they would be in if no such rule existed. Independently of any rule, if the loss was occasioned by the negligent or wrongful acts of the- plaintiffs, the defendants would not be liable. It is not denied that, by the terms of the contract, the plaintiffs were to load, unload and feed their stock at their own expense and risk. If, in doing this, they were guilty of any negligent and wrongful act, without the defendants’ knowledge, which occasioned the loss, they cannot recover, and the jury should have been so instructed. Squire v. New York Central Railroad Co. 98 Mass. 239. 3. The defendants except to the ruling of the court that the several corporations who are defendants were liable jointly, if either was liable. It is difficult to understand the bill of exceptions upon this point. If the defendants intended to except to the right of the court to take this point from the jury, the exception must be sustained. There was no written contract between the parties .to this suit, and no written contract was shown between the different railroads forming the line over which the plaintiffs’ horses were to be carried; all the evidence upon these points was by paroi; and cl parly it was the province of the jury to decide what was the contract between the . parties, and what the relation of the different railroads to each other. The bill of exceptions does, not state the facts upen which the ruling was based, and it is impossible for this court to know what facts the jury would have found if the evidence had been submitted to them. Thus we cannot assume, either that it was or was not proved that the Ogdensburg road made a contract with the plaintiffs by which they were responsible for the [567] safe carriage of the plaintiffs’ horses beyond their own line. This is a question which must be submitted to the jury upon the evidence. So we cannot determine whether the arrangements between the different roads constituted them partners or quasi partners, so as to create a joint liability, because what these arrangements were does not definitely appear by the bLl of exceptions. The only two witnesses who testify as to them state them differently. The general principles upon which the question of the liability of several railroads, forming a continuous line, is to be decided, are stated in the recent cases of Darling v. Boston & Worcester Railroad Co. 11 Allen, 295 ; Gass v. New York, Providence & Boston Railroad Co. 99 Mass. 220 ; and Burroughs v. Norwich & Worcester Railroad Co. 100 Mass. 26. 4. The defendants asked the court to rule, that, if the plaintiffs knew that the cars which they took at the Potsdam station were unsafe and unfit for the purpose, on account of their condition, and yet they accepted them rather than wait a week for better ones, and the fire occurred because of such defect and without the defendants’ fault, the plaintiffs took the risk of them, and cannot recover. This instruction was properly refused. The defendants were bound to furnish suitable cars for the transportation of such goods as they undertook to transport; and if they furnished unsafe or unfit cars, they would not be exonerated from liability by the fact that the plaintiffs knew them to be defective and accepted or used them. Nothing less than a distinct agreement by the plaintiffs to assume the risk would have that effect. But if the plaintiffs expressly agreed to assume the risk of defective cars, rather than wait a reasonable time for other cars, they cannot recover. 5. All the other rulings to which exceptions were taken appear to have been correct. Exceptions sustained.