Fremont, Elkhorn & Missouri Valley Railroad v. Waters

Post, C. J. This was an action below in the district court for Seward county, wherein the defendant in error, John Waters, recovered judgment against the plaintiff in error, the Fremont, Elkhorn & Missouri Valley Railroad Company (hereafter called the “railroad company”), and from which the latter prosecutes proceedings in error to this court. The cause of action alleged in the petition below is (1) that the defendant company neglected and refused, upon the plaintiff’s demand, to furnish him, the said plaintiff, cars for the transportation of corn from Goehner station, in this state, to Chicago, between November 12 and 28, 1891, although notified in advance that he would require twelve cars for the shipment of his grain, amounting to 5,000 bushels and over, then on hand, which was, as the defendant well knew, worth in the Chicago market, -if delivered during the month of November, eighty cents per bushel, but which was when subsequently delivered worth forty-five cents, or less, per bushel; (2) that on and after November 28, 1891, plaintiff delivered to the defendant company, in good condition, eight car loads of shelled corn, which the latter undertook to transport from the station above named to Chicago, but that through the negligence of the defendant, sixty bushels of said corn, of the value of eighty cents per bushel, was lost, ai..d 5,014 bushels thereof was, on account of the bad condi — 595 — tion of the cars furnished by the defendant, damaged in transit to the amount of twenty cents per bushel. The ansAver admits the receipt by the defendant company of eight cars of corn, which it undertook to transport from Goehner station to its terminal point at Missouri Yalley, in the state of Iowa, where said corn was, by agreement with the plaintiff, delivered in as good condition as Avhen received, to the Chicago & Northwestern Railroad Company, a connecting carrier, and Avas by the last named company in like condition delivered to the plaintiff’s consignee in the city of Chicago. It is in the answer further alleged that there was during the period mentioned in the petition, an unusual and extraordinary demand for cars, to be used in the shipment of corn to the Chicago market, and that the defendant company made a just and equitable distribution of cars among its patrons, including the plaintiff. Accompanying the foregoing statements of the answer is a denial which puts in issue the other allegations of the petition. The reply is a general denial. The assignment of the petition in error to which especial prominence is given by the argument of counsel for the railroad company relates to the giving of the seventh instruction, as follows: “You are instructed, as a matter of law, that where two or more carriers by agreement unite to complete a line of transportation, the freight to be divided between them in definite proportions, and one of them receives goods for one freight for the whole line, and gives a through bill of lading, then each carrier is the agent of the other, and each is liable for damages done to the goods, or any unreasonable delay in transporting the same, on whatever part of the line the same may occur; and, in this case, you are further instructed that the bills of lading introduced in eAÜdence recite that the cars of corn therein mentioned were received by the defendant corporation at Goehner to be carried to Missouri Yalley, and thence to Chicago over the Chicago & Northwestern railway, and, if you believe from the evidence that the defendant corporation, at the time the corn was received, — 596 — had an arrangement or agreement with the Chicago & Northwestern railway, by which they were each to unite and form a complete line of transportation between Goelmer and Chicago, and each of the connecting companies to have an agreement or definite part of the freight, as between themselves, then the defendant would be liable for any damage or loss happening to the com on any part of the entire route.” This instruction is, it is contended, erroneous, for the reason that it assumes the existence of facts as to which there is an entire failure of proof; a criticism in our judgment altogether warranted by the record. There is in the bill of exceptions no evidence tending to prove that the defendant undertook to transport the corn beyond the terminus of its own line, or an agreement between the said defendant and the Chicago & Northwestern Company with respect to through traffic over their respective lines, while by the contract of shipment, as evidenced by the several bills of lading, it was expressly stipulated that the liability of the defendant company should cease upon the delivery at its depot at Missouri Yalley of the property which is the subject of this controversy, in as good condition as when received, to the Chicago & Northwestern Company as a connecting carrier. We insert here so much of the contract mentioned as relates to the subject under discussion: “read this contract. “Receipt for Freight Received at Goelmer, Neb., Dec. 5,1891. “Received from John Waters in apparent good order by the Fremont, Elkhorn & Missouri Yalley Railroad Co., the following described packages marked and numbered as per margin, subject to the conditions and regulations of the published tariff of said company, to be transported over the line of this railway to Mo. Yalley, la., and delivered, after payment of freight, in like good order to C. & N. W. By., a connecting or carrier (if the same are to he forwarded beyond the lines of the company’s road) to — 597 — be carried to the place of destination, it being expressly agreed that the responsibility of this company shall cease at this company’s depot, at which the same are to be delivered by such carrier, but this company guarantees that the rate of freight for the transportation of said packages from the place of shipment to Chicago shall not exceed tariff per cwt. and charges advanced by this company subject to the following conditions: * *- -X- -X- -X- * » “Marks and Consignee. Description of Articles. “Order of H. T. Jones. Bulk Corn, 40,000 lb. “Notify Bartlett, Frazier & Co.-, Ch’go. “Car initial, F., E. & M. V. “Car No. 3026. “J. M. McFadden, “Agent.” McFadden, the defendant’s station agent at Goehner, testifies on his cross-examination as follows: Q. Is that (the C. & N. W. Company) a part of the Elk-horn? A. It is under a different management. Q. It is the same system? A. I guess it is. There was also introduced in evidence by the plaintiff below a map, npon the upper margin of which appears in bold type the words: “Chicago & North-Western System. The Elkhorn Valley Line. Fremont, Elkhorn & Mo. Valley R. R., and Connections,” and in another place, in smaller type, the following: “The North-Western Line, F., E. & M. V., and S. C. & P. R. R.” There appears also upon said map, in different colors, the lines of the Chicago & Northwestern, the Fremont, Elkhorn & Missouri Valley, the Sioux City & Pacific, and the Chicago, St. Paul, Minneapolis & Omaha Railroad Companies. This evidence was, it may be assumed, admissible as tending to prove the relationship to each other, in some manner or for some purpose, of the several railroad companies above — 598 — named. But the character of such relation, whether that of a common management, a common ownership, or the not unusual agreement for the interchange of business, is not indicated by the words “system” as there employed, and such evidence, with the inferences deducible therefrom, is certainly insufficient to overcome the positive agreement contained in the bills of lading. As to the common-law liability of the initial carrier upon a through bill of lading on account of loss or damage to goods by a connecting line to which they have been delivered for transportation, the authorities are not harmonious. The question of the carrier’s liability in such case has, in this state, been made the subject of both constitutional and statutory regulation. Section 4, article 11, constitution of 1875, provides: “The liability of railroad corporations as common carriers shall never be limited.” Section 111, chapter 16, Compiled Statutes, entitled “Railroads,” declares that “any railroad company receiving freight for transportation shall be entitled to the same rights and be subject to the same liabilities as common carriers;” and by section 5 of article 1, chapter 72, Compiled Statutes, entitled “Railroads,” it is provided that “No notice, either express or implied, shall be held to limit the liabilities of any railroad company as common carriers, unless it shall make it appear that such limitation was actually brought to the knowledge of the opposite party and assented to by him or them, in express terms before such limitation shall take effect.” These restrictions were examined in St. Joseph & G. I. R. Co. v. Palmer, 38 Neb., 463, and held applicable to contracts made in this state for the transportation of goods beyond the carrier’s own line. Irvine, C., in the case cited, after a review of the earlier decisions of this court, says: “The contract of the shipper was with the carrier first receiving the goods, and if such carrier undertook to dcdiver the goods at their destination, even though it contemplated doing so through intermediate carriers, it assumed a liability of such character for every part — 599 — of tlie route.” But the rule thus stated can have no application to the facts of the case at bar, since the limitation here involved relates to the obligation of the defendant company to accept the corn in question for transportation beyond the terminus of its own road, and not to its liability as a carrier under the contract as actually made. It was the duty of the defendant company, subject to such reasonable rules as may have been adopted in the transaction of its business as a common carrier, to receive the plaintiff’s corn and transport the same from the point of shipment to the terminus of its line at Missouri Valley, and there safely deliver it to a connecting carrier. But upon the delivery of goods in such case to the connecting carrier designated in the bill of lading, or contract of shipment, the common-law liability of the initial carrier ceases, and any duty on its part respecting the transportation of such goods over connecting lines results from contract obligations. It was accordingly competent for the defendant company to contract for the transportation of plaintiff’s corn from Goehner station to Missouri Valley, and to stipulate that its responsibility therefor should cease upon the delivery of said corn to the Chicago & Northwestern Company. It is possible that the contract of shipment might, notwithstanding the language of the bills of lading, have been shown by extrinsic evidence to contemplate the through carriage of the com. That question is, however, not presented by the record or the arguments of counsel and will not be further noticed in this connection. It is sufficient that the contract, unexplained, is for the transportation of the corn to Missouri Valley only; that said contract is in no proper sense a limitation of the liability of the defendant company as a common carrier, and that there is no competent evidence of an agreement between the defendant and the Northwestern Company for the issuing of through bills of lading or for the “division in definite proportions,” or otherwise, of freight charges for grain forwarded by the former. The instruction above set out being unwar — 600 — ranted by the evidence, is, as has often been held, erroneous. (Newton Wagon Co. v. Diers, 10 Neb., 284; Esterly v. Van Slyke, 21 Neb., 611; Esterly Harvesting Machine Co. v. Frolkey, 34 Neb., 110.) It is, however, contended that the transaction between the plaintiff and McFadden, the station agent, at the time the cars in question were “ordered,” amounted to a contract by the latter in behalf of the defendant company which could, under the statute quoted, be modified only upon proof of actual notice to the plaintiff and his assent in express terms thereto. It is not doubted that a railroad company is prima facie liable for the failure to furnish cars in accordance with the verbal agreement of a station agent acting within the scope of his authority, (Gulf, C. & S. F. R. Co. v. Hume, 87 Tex., 211; Gulf, C. & S. F. R. Co. v. Hodge, 30 S. W. Rep. [Tex.], 829.) And the same principle was recognized by the court in Union P. R. Co. v. Marston, 30 Neb., 241. But the claim with respect to a verbal contract for the transportation of the corn is unsupported by the record. The plaintiff, according to his own testimony on November 12 and 16, notified McFadden that he 'would require cars for the shipment of his corn to Chicago, whereupon the latter promised to provide cars but without naming a definite number or time for their delivery at Goehner. There was, so far as the evidence discloses, nothing said respecting the defendant’s undertaking, whether for the transportation to Chicago or to the terminus of its own line, nor are there any facts from which we can infer an agreement on that occasion for a through shipment of the plaintiff’s grain. The transaction in question certainly lacks the element of certainty which is essential to all valid contracts. There are other propositions discussed by counsel, but which are mainly incidental to the question here decided, and will not be noticed in this opinion. For reasons above stated the judgment is reversed and the cause remanded. Reversed,