Baltimore & Ohio Railroad v. Rathbone

Berkshire, President, delivered the opinion of the court. The questions arising in this case involve the rights, duties and responsibilities of common carriers, and are, therefore, of the highest consequence, not only to that numerous and important class of persons, but also to the [106] public at large, Being, therefore, required as we are, to settle and declare tbe law of tbe State relating to a subject of such general importance, it is to be regretted that so little aid can be derived from tbe source to which we would naturally turn for the most direct and satisfactory authority; I mean, of course, the adjudications of the State of Virginia, which, it will be found reflect little or no light on these important and practical questions. Being deprived of such aid we are obliged to resort elsewhere for the law of the subject, and after careful and anxious consideration and diligent examination of the very numerous and somewhat conflicting authorities, we have deduced such conclusions as we think are fully sustained by the most numerous and reliable authorities on the subject, which we proceed to state as concisely as practicable. First, The court is of opinion, that it is competent for á common carrier to diminish and restrict his common law liabilities by special contract, and that he may, by express stipulations, also absolve himself from all liability resulting from any and every degree of negligence however gross, (if it fall short of misfeasance or fraud,) provided the terms- and language of the contract are so clear and definite as to leave no doubt that such was the understanding and intention of the parties. And further, that to allow a party, by declaring in assumpsit, as in this case, to seek a recovery on ■a special contract and yet not be bound by it, would involve a plain legal absurdity. See Angelí on Common Carriers, sec. 10, 11, 12, 15, 220; Story on Bailment, sec. 18; James on Bailment, see. 22. Second, That the freight bill or bills of lading introduced by the defendant in error, constitute special contracts, and that both parties are bound by the same and all the stipulations therein contained. Angelí on Common Carriers, sec. 223. Third, That the defendant in error having declared in assumpsit against the plaintiff in error, as a common carrier or bailee for hire, without regard to the special contracts, the same were not applicable to any of the counts in the [107] declaration and ought not to have been allowed to go to the jury in support of the same.. Angelí on Common Carriers,, sec. 440. Fourth, And the court is further of opinion that the1 words' “ at the owner’s risk,” contained in ,the bills of lading, or contracts, taken in connection with the other stipulations therein contained, were understood and intended by the parties in this case to limit the plaintiff in error to such loss- or damage only as might result from ordinary neglect, by which is meant the want of that care and diligence which prudent men usually bestow on their own concerns — which is defined in the books to be ordinary neglect. Fifth, That although it is held in England in. cases of contract of shipment or transportation “ at the owner’s risk,” in general terms, puts the question of diligence and neglect out of the case, and exonerates the carrier or bailee from all responsibility whatever, according to the modern authorities cited by the learned attorney for the plaintiff in error, yet-we are not disposed to extend the doctrine further than it was carried by the supreme court of the United States in the ease of the New Jersey Steam Navigation Company vs. The Merchants’ Bank, 6 Howard Reports 344: and consider that-case as settling and declaring the law concerning common carriers and bailees for hire, which should prevail in this-country. Sixth, The court is therefore of opinion, that the circuit court erred in holding, as it seems to have done, that the bills of lading did not constitute special contracts between the parties, and consequently erred also in refusing to give the first, second, fifth and sixth instructions asked for by the plaintiff in error, and in giving in lieu thereof those which it did give Seventh, That the court further erred in refusing to set aside the verdict and award a new trial, as the facts certified by the court show that there was a special contract and agreement between the parties for the transportation of the oil at the plaintiff’s risk, which imposed upon the defendant a different liability from that charged in the declaration; [108] and consequently the verdict should have been set aside for this variance and this alone, and a new trial granted and the plaintiff allowed to amend his declaration if he should ask leave to do so. Eighth, That, as the averments in the declaration are-such as would render the defendant liable as a common carrier or ordinary bailee for hire, in the absence of any special contract, the circuit court did not err in overruling the demurrers to the same. Judgment reversed, and cause remanded to circuit court ibr further proceedings.