Great Western Railway Co. v. Hawkins

Ohristiancy J. The first point raised by the plaintiff in error (the question of the sufficiency of the declaration to warrant a recovery on the ground of the defectiveness of the cars furnished by the company, without declaring specially upon the contract, &c.) was involved, and must be considered as decided in this case when before us, upon the same declaration, in 17 Mich. 57: For though the point was not raised, and could not, as the case was then presented, have been assigned for error — the case having been brought here by the plaintiffs below, to reverse the judgment for a charge adverse to them — yet if the objection now taken be well founded in law, the plaintiffs in that case could not [433] legally have been injured by the charge, since they could not have recovered under their declaration, whatever the charge upon the points to which' it related might have been; and the judgment should not, therefore, have been reversed. The company in this case must be regarded as common carriers, and liable as such, except so far as that liability was qualified by the special contract. The contract was silent as to the fitness of the cars to be furnished by the company. As properly held in. the case when formerly before us, the contract did not exempt the company from the duty or obligation to furnish suitable cars; but the common law liability as to this point, and to this extent, remained substantially the same as if no special contract had been made. The reception of the property for transportation, whether under the special contract, or as carriers of such property generally, created the same liabilities in this respect, and the company must be considered as common carriers in reference to this particular duty, for the breach of which alone the recovery was had. 2. The evidence in the case tends to show that the injury to the horses occurred in the course of their transportation, and in consequence of the cars being unfit for the purpose. The wrong or negligence, therefore, in this respect, may properly enough be alleged as a breach of the duty to carry safely. We are aware, there are some cases of this kind, which have required a more special mode of pleading; as under the modern system of pleading in England, which requires more precision in stating the exact nature of the breach of duty, than under the former common law rules. But we see no beneficial purpose to be subserved by a more specific form of declaration. We think the declaration is sufficient to admit the proof of the negligence or breach of duty which the evidence tended to prove. [434] The second point raised by the plaintiff in error is, “that while the special contract might not excuse negligence on the part of the company or its chief officers, it might well protect them from the negligence of subordinate agents of the company if its chief officers had no knowledge of the use of defective cars, and employed proper agents,” &c. We must regard this point also, as fully and correctly settled in the case as formerly decided, and no longer opeir to controversy. The obligation of the company to furnish suitable cars under or notwithstanding this contract, was then held to be absolute on reception of the property, without reference to the fitness or fidelity of agents or officers, subordinate or otherwise, unless some showing was made, that the plaintiffs, with proper opportunities of observation, and with notice of their actual condition, assented to the use of the cars on which their horses were shipped. We see no reason to doubt the correctness of this decision, and think it fully covers the point now raised. There is no error in the record. The judgment of the Circuit Court must be affirmed, with costs. The other Justices concurred.