Miltimore v. Chicago & Northwestern Railway Co.

Cole, J. The learned circuit judge found from the evidence that the defendant company was guilty of negligence in removing the wagon from Janesville, the place of shipment, and in carrying it forward toward Chicago, its point of destination, without taking the precaution to secure it to the car, so as to prevent it from being thrown from the car by the violence of the wind prevailing at the time. Upon this ground the company was held liable for the injury to the wagon upon being blown off the car. We feel constrained to dissent from this view of the case. The evidence shows, beyond all doubt or question, that the plaintiffs themselves chose an open or platform car upon which to transport the wagon to Chicago. They did not wish to have the wagon taken apart so that it could be transported in a box car, but chose the platform car, upon which the wagon could be carried standing, as the cheaper mode of conveyance. The company certainly was not at fault for this manner of transporting the wagon. The evidence clearly shows that the plaintiffs assumed the labor and responsibility of loading the wagon. Ripley was told when he bargained for the car, by the agents of the company, that if he got the wagon to the cars before five o’clock, they would help him load it, but if he got there after that time, he would find his car by the freight [195] house platform, upon which to place the wagon. He got to the freight depot late, but met a couple of the workmen coming away, who went back and aided him in loading the wagon. But Ripley himself took the entire charge and responsibility of loading the wagon, as it was understood he would do, and of securing it to the car. Whatever means and appliances he deemed necessary and proper to be used to secure the property while in transit, he used, or might have used, without the control or interference of any one. The state of the weather, the nature of the property, its exposure to violent winds, he should have considered and provided for. It seems to us there is no reason for saying that the company was guilty of negligence, and did not take due precautions to secure the wagon, in view of the established fact that the plaintiffs undertook to attend to these matters themselves. The company received the property for transportation, loaded and secured as the plaintiffs saw fit to load and secure it; and why should negligence be imputed to it for not taking precautions to guard against the plaintiffs’ want of care ? It is said the company was exceedingly careless and negligent in attempting to carry this covered wagon at the time and in the manner it did, without making any effort to attach the same more firmly to the car.' But the obvious answer to this argument is, that the plaintiffs themselves assumed the risk and responsibility of loading and securing the wagon, and the company was not called upon to see that they had properly performed their duty in that regard. The plaintiffs had ordered that the wagon should be sent by the night train, and the agents of the company had agreed to take it, if loaded. According to the testimony of Carter, one of the plaintiffs, the wind blew very hard between eight and nine, while the train on which the wagon was to go did not leave Janesville until 9:15. There was ample time to countermand the order to ship the wagon that night, or to see that it was so secured that it could not be blown from the car by the violence of the wind. It seems to us that whatever negligence there was in securing [196] the wagon, must be imputed to the plaintiffs. The case is not distinguishable in principle from Betts v. The Farmers' Loan & Trust Company, 21 Wis., 81, and the decision there made is controlling here. There the owner of cattle shipped bj railroad, who had undertaken to put them in the car, knew that the door of the car was in an unsafe condition, but neglected to inform the station agent, who was ignorant of the fact; and it was held that he could not recover for injuries received by the cattle in escaping from the car in consequence of such defect. So, under the circumstances of this case, it' seems to us, the company was not obliged to take further precautions to fasten or secure the wagon on the car. The plaintiffs had taken upon themselves that care and responsibility, and if they failed properly to secure it against the violence of the wind, and it was 'injured, the loss is attributable to their fault. It follows from these views that the judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the complaint. By the Court. — It is so ordered.