Meuer v. Chicago, M. & St. P. Ry. Co.

Corson, P. J. In March, 1887, the plaintiff shipped from Avoca, Wis., a car load of live stock and emigrant movables over defendant’s road, consigned to himself at Bristol, D. T. The car containing the freight arrived at Bristol, and the plaintiff, while removing the live stock from the car, was injured, to recover for which this action is brought. The live stock and movables were shipped under a special contract, by the terms of which the plaintiff was permitted to pass on the train to care for and look after his stock. The material parts of the contract, so far as they affect this case, are as follows: “(Exhibit A.) Chicago, Milwaukee & St. Paul Railway. Live-Stock Contract. * * * Persons in charge of live stock will'be passed on the train with, and to care of it, as follows: One man with two or three cars, two men with four or seven cars, three men with eight cars, which is the maximum number that will be passed for one owner. Passes will be furnished in manner provided on back of this contract, to persons, who, as above, may have been in charge of two or more — 573 — cars of stock. No return passes given on west-bound shipments. No person will be passed with one car of live stock except that one car of horses or mules or emigrant movables containing live stock will entitle the owner or man in charge'to pass one way on the same train, to take care of it. * * * * Such entry of persons in charge and certificate of billing agent to that effect will be the authority of conductors to pass them with the stock. All persons are thus passed only at their own risk of personal injury from whatever cause. A. C. Bird, General Freight Agent. ” “ * * * Received of Anton Meuer, one car live stock and. emg. mov. as per margin, to be delivered at Bristol, Dakota, station at special rates, being 845,00 per car; which stock is to be loaded and unloaded, watered and fed by said Anton Meuer, or his agents. * * * The Chicago, Milwaukee & St. Paul Railway Co., by D. Bohan, Agent. Anton Meuer, Shipper.” Indorsement on back: “Parties actually in charge of and accompanying the within stock must write their own name in ink here. [Signed] Anton Meuer.” The contract was introduced in evidence by the plaintiff. At the close óf the plaintiff’s evidence, and again at the close of all the evidence in the case, the defendant moved the court to instruct the jury to return a verdict for the defendant on the ground that, by the terms of the contract, the plaintiff assumed all risk “of injury from whatever’cause, ” and could not, therefore, recover in this action. These motions were denied, and exceptions duly taken. The learned counsel for the appellant contend that, under the terms of the contract signed by the plaintiff, he agreed to assume all the risk of personal injury from whatever cause; that such a contract was authorized by the laws of this state, and was a legal, valid, and binding contract, exonerating the defendant from all liability for personal injuries to the plaintiff, from whatever cause received. They further contend that the contract, though made in Wisconsin, would nevertheless be — 574 — interpreted by the laws oí this state, in the absence of evidence as to the laws of Wisconsin in relation to the contracts of common carriers, and thdt the law of Wisconsin will be presumed to be the same as the law of this state relating to such contracts. The contract in this case, having been made in Wisconsin, may be regarded as a contract of that state, and to be interpreted in accordance with the laws of that state. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469; Hazel v. Railroad Co. (Iowa) 48 N. W. 926. This court, however, will not take judicial notice of the laws of another state. Such laws must be alleged and proven on the trial, the same as any other facts in the case. No such evidence appears from the record in the case, to have been given. In the absence of such evidence this court will presume that the law of Wisconsin as to the right of a common carrier to limit the liability of himself or servants is the same as the law of this state upon that subject. Sandmeyer v. Insurance Co. (S. D.) 50 N. W. 353. There is some conflict in the decisions of the different courts upon the question as to whether or not the court will presume that the law of another state is the same as the statute law of the state where the action is tried, but the weight of authority seems to support this view. In the case of Palmer v. Railroad Co., decided by the supreme court of California in the present year; and reported in 35 Pac. 630, the court says: “The cause, so far as can be determined from the record, was tried upon the theory that .the law of California is applicable. There is no suggestion that the law of Missouri, where the contract for transportation was made, was put in evidence. Under such circumstances, we are not at liberty to assume as a fact that the state of Missouri has a special statute on the subject, but must presume as a question of law that the law of that state is the same as our own. Norris v. Harris, 15 Cal. 226; Hill v. Grigsby, 32 Cal. 56; Taylor v. Shew, 39 Cal. 540; Brown v. Gaslight Co., 58 Cal. 426; Marsters v. Lash, 61 Cal. 622; Shumway v. Leakey, 67 Cal. 458, 8 Pac. 12. Judged — 575 — by our own statute, and by the lawful limitation which defendant might and did embrace in its bill of lading, it was bound to transport to Albuquerque, and deliver to the Atlantic & Pacific, connecting road, within a reasonable time, plaintiffs goods.” See, also, 19 Am. & Eng. Enc. Law, 47; Neese v. Insurance Co., 55 Iowa, 604, 8 N. W. 450; Walsh v. Dart, 12 Wis. 635; Hadley v. Gregory, 57 Iowa, 157, 10 N. W. 319. The first question, then, to be determined is, what is the law of this state as to the right of a common carrier to limit his liability ? for the contract in this case must be interpreted by our law upon this subject. There is a direct conflict in the decisions of the various courts upon the question of the right of common carriers to limit their common-law liability for the negligence of themselves and their servants by special contracts. In Railroad Co. v. Lockwood, 17 Wall 357, the supreme court of the United States held that common carriers do not possess the power to limit their liability, even by express contract, for the negligence of themselves or their servants; and this view'was affirmed in Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469. On the other hand, the court of appeals of New York, in a number of cases, has held that common carriers possess such power. This doctrine is clearly laid down in Bissell v. Railroad Co., 25 N. Y. 442, and affirmed by that court, after the dicision in Railroad Co. v. Lockwood, supra, in Mynard v. Railroad Co., 71 N. Y. 180. This court, however, is not called upon to decide between these conflicting opinions, as the Code of this state has settled the question within this jurisdiction. Hartwell v. Express Co., 5 Dak. 463, 41 N. W. 732; Hazel v. Railroad Co (Iowa), 48 N. W. 926; Kirby v. Telegraph Co. (S. D.) 55 N W. 759. The sections of the Code bearing upon this question constitute sections 3881-3888, Compiled Laws, and read as follows: “Every one who offers to the public to carry persons, property or messages, is a common carrier of whatever he thus offers to carry.” 3886: “The obligations of a common car — 576 — rier cannot be limited by general notice on his part, but may be limited by special contract.” 3887: “A common carrier cannot be exonerated by any agreement made in anticipation thereof, from liability for the gross negligence, fraud or willful wrong, of himself or his servants.” 3888: .“A passenger, consignor or consignee, by accepting a ticket, bill of lading or written contract for carriage, with a knowledge of its terms, assents to the rate of hire, the time, place and manner of delivery therein stated. But his assent to any other modification of the carrier’s rights or obligations contained in such unstrument can only be manifested by his signature to the same.” By section 3886 it will be noticed that common carriers may, in this state limit their liability by special contract; and by section 3887 an exception is made in cases of ‘ ‘gross negligence, fraud, or willful wrong. ” It would seem, therefore, that, subject to the exceptions specified, a common carrier by the laws of this state, may, by special contract, limit his common law liability in all cases not included in the excepted cases. This case seems to have been tried, and the jury instructed, upon the theory that the defendant, notwithstanding the stipulations in the contract, was liable for the ordinary negligence of itself and servants, and the question of gross negligence is eliminated from the case. The record disci oses the fact that the defendant’s counsel requested the court to instruct the j ury that there was no evidence of gross negligence, and it was refused, the court stating ‘ ‘that he did not submit the question of gross negligence to the jury, but simply the question of ordinary negligence.” We shall assume therefore, for the purposes of this decision, that there was no evidence of gross negligence, fraud, or willful wrong on the part of the defendant or its servants, and that the verdict of the jury was based entirely upon the theory that the injury to the plaintiff was caused by the ordinary negligence of the defendant or its servants. Taking this view of the case, was the defendant entitled to have his motion for an instruction to the jury to find -for the defendant, granted — 577 — at the close of the plaintiff’s evidence? As before stated, the special contract was introduced in evidence by the plaintiff, and was therefore a part of the plaintiff’s case. It appears from this contract between the parties that defendant, in consideration of the plaintiff’s stipulations to load and unload the car, and feed and water the live stock on the trip, agreed to transport the car of stock and household movables at a reduced rate, and to pass the plaintiff on the same train, to care for and look after the live stock, but at plaintiff’s “own risk of personal injury from whatever cause.” Assuming that plaintiff’s injuries occurred while such pas^ senger upon the train, and that they occurred from the ordinary negligence of the defendant or its servants, the limitation in the contract would seem to be such a one as is permitted by the statute, and would exonerate the defendant from liability for the injuries plaintiff sustained, the contract being a special contract, and signed by the respective parties, as required by the statute. The terms of the contract are clearly stated. There is no ambiguity in its stipulations, and the intention of the parties is clearly ascertainable from the terms of the contract. The plaintiff was, by the terms of the contract, to be carried upon the same tram with his live .stock and movables, without extra charge, to care for and feed and water his stock; but at his own “risk of personal injury from whatever cause.” This contract the law permitted the parties to make. Section 3881'defines who are common carriers, and section 3886, in the same chapter, provides “that the obligations of a common carrier * - * * may be limited by special contract.” And section 3887 uses the same general term, “a common carrier,” etc. Interpreting the contract by the law, it is difficult to perceive any valid reason for holding the defendant liable for plaintiff’s injury. The contract, as we have seen, is one which the law permits the common carrier to make, and by its terms it clearly exonerates the defendant from liability for injuries caused by — 578 — the ordinary negligence of the defendant, dr its servants. The motion, therefore, should have been granted. The learned counsel for respondent contend that under the law of this state the contract is void. It is not claimed that the legislation of this state is not within the proper exercise of the legislative power, or is in violation of the organic act or the state consti ■ tution. But it is. contended that under the common law a com: mon carrier of passengers is required to exercise the utmost diligence and the highest degrée of care and prudence in transferring passengers from one place to another by steam power, and that “there has never been any attempt to relax the rule requiring the utmost vigilance by the carriers of passengers in operating by this mode of conveyance.” The requirement in this-case being the most exact that the law imposes, no matter what the relation may be, any failure or omission of rhe person upon whom the duty rests is negligence, and this negligence is not subject to division into degrees; hence'the courts hold that any negligence of a carrier of passengers is gross negligence. The counsel, after further argument, concludes as follows: “We therefore conclude,1 in view of the law as.established by the judgments of the courts placing upon the carriers of persons the responsibility of exercising the greatest degree, of care and vigilance in the conveyance of human beings, that section 3887 of the Compiled Law does not relieve from responsibility .the carriers, of persons in cases where negligence .is; shown, even though the carrier has a pretended release from liability in the form of a special contract. That, while the section apparently applies to common carriers in general;.it must be limited in i-ts operation to carriers other than those who engage rin ' the -transportation - of persons. * * ” While it is true that the utmost care is required ,on the part of the carrier of passengers, and that such carrier is ordinarily liable for negligence, whether gross, ordinary, or Slight, still there ma> be in fact degrees of negligence in the management of its business by itself or its servants; and it is — 579 — upon this, theory that the legislature has deemed it proper to permit such carriers to limit its liability for ordinary or slight negligence, when, under the law, it would ordinarily be held for injuries to persons caused thereby. The lawmaking power might properly permit special contracts exonerating such carriers from liability, when injury is caused to a person-by ordinary or slight negligence, or even by gross negligence, if it deemed it proper. In New York, as we have seen, arid other states, such contracts are permitted, and held valid, even without the aid of a statute. We are unable to discover any reason for holding that the lawmaking power may. not make any provision governing the liability of common carriers, and authorizing them to limit their liability as it may deem proper. It is further contended that the contract in this case is invalid, under the provisions of section 3578, Comp. Laws, which-reads as follows: “All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” But the contract in this case is not a contract to violate any express law. It cannot be said that a contract permitted and sanctioned by express law is a contract to violate the law. If we are correct, the sections of the statute relating to common carriers permits common carriers of passengers as well as common carriers of property to make the contract in question, subject, of course, to the exceptions contained in the law. The argument of counsel would have much more weight as applied to carriers of freight than as applied to the carriers of passengers, as carriers of freight at common law were absolute insurers of the safe delivery of the property intrusted to-them, except where the loss occurred ‘ ‘by the act' of God, or the public enemy, or by their own decay from inherent infirmity, or by the fault of the owner thereof.” Further exceptions are made in the carrying of live stock, not material now to be stated. If — 580 — therefore, the contention of counsel is correct, the statute could have no effect, as there would be no class of carriers to which it would apply. We are of the opinion that the statute does apply to carriers of passengers as well as to carriers of freight, and we cannot assent to the contention of counsel for respondent that the contract in this case is void. The counsel further contend that, as the stipula tion in the contract is general, and does not specifically limit the liability of the defendant to the negligence of itself or-servants, such negligence is not included; in other words, the language of the stipulation, “risk of personal injury from any cause,” does not include injury caused by the negligence of the defendant or its servants. There is force in this contention, and it has some support from the New York decisions. The doctrine is thus stated in Mynard v. Railroad Co., 71 N. Y. 180: “When general words may operate without including the. negligeece of the carrier or his servants, it will not be presumed that it was intended to include it.’’ But this doctrine has generally been applied to contracts by carriers of freight. And even in this class of cases, when there is nothing in the contract upon which the general words, can operate, unless the negligence of the defendant or his servants is included, such negligence is included in the general words, “for whatever cause. ” This doctrine is illustrated in Cragin v. Railroad Co., 51 N. Y. 61, and Holsapple v. Railroad Co., 86 N. Y. 275. In the former case the court says: “In this case the plaintiffs assumed and agreed to take the risk of injuries to the hogs in consequence of heat. Effect should be given to this stipulation. The parties must be held to have meant something by it. In consideration that the plaintiff’s would assume and take certain risks, which would otherwise devolve upon the defendant, it agreed to carry at a reduced rate. If it be held that this stipulation simply exempts the defendant from liability for injuries to the hogs from heat without any fault on his part, then it gets nothing; for in such pase without the stipulation, it would not be responsible. — 581 — Force and effect can be given to this stipulation only by holding that it was intended to exempt the defendant from negligence, in consequence of which the hogs died from heat. The judge, at the trial, however, entirely ignored this special contract, and put the case to the jury upon the defendant’s common-law responsibility, charging that it was liable if they found it guilty of negligence in the transportation of the hogs; and he refused to the defendant any benefit whatever from the special contract. In this I cannot doubt the learned judge erred.” In the latter case the court says: “The doctrine of Mynard v. Railroad Co., 71 N. Y. 180, is decisive upon this question. It was there held that, where general words, limiting the liability of a carrier, may operate without including his negligence or that of his servants, such negligence will not be within the exemption of the agreement. To this extent, at least, we all concur. However broad or general may be the language of the contract which doe? not specifically and in express terms release the carrier from the consequences of-his own negligence, it will not effect such release if the general words may operate without including such negligence. That is the' case here. The precise injury might have occurred which actually happened without fault or negligence on the part of the carrier. * * * It is in this respect that the present case differs from that of Cragin v. Railroad Co., 51 N. Y. 61. In that case the injury resulted from the vitality of the animals, and their inherent nature and characteristics. For such injury the carrier was not liable at common law, and the general words of release and exemption could not operate at all, unless upon the negligence of the defendant. The case was decided upon that precise ground.” In Kenney v. Railroad Co., 125 N. Y. 422, 26 N. E. 626, the rule was extended to a contract for the carriage of passengers, but under special circumstances. It was held in that case that the general clause in question was capable of another construction, as applied to the facts in that case, and the same rule was applied as in the — 582 — case of contracts for the carrying of freight. In this case there are no special circumstances taking the case out of the general rule that in the case of a passenger the only basis of the carrier’s liability is negligence, and such a stipulation in the contract would be deprived of all operation unless it would cover negligence. A carrier of passengers is not an insurer of the safety of the passengers as is a carrier of goods, for the safe delivery- of the goods. A carrier of passengers is only liable for negligence, and hence the stipulation in the contract has nothing to operate upon unless negligence is included. In the discussion thus far we have assumed that the plaintiff was injured while a passenger upon defendant’s road. It is contended, however, by respondent, that he had ceased to be a passenger when the injury to him occurred, he having arrived at Bristol, the place of his destination, and left the car. It appears from the evidence that after plaintiff’s car was- sidetracked at the station, the plaintiff wrent to an hotel in Bristol to get lanterns and assistants to aid him in unloading his car; that he was absent a short time, — how long does not appear, but evidently only for a short period, — when he returned, and proceeded to unload his stock. While it may be true, as contended by respondent, that when an ordinary passenger arrives at his destination, and leaves the train and the depot, his relation to the carrier as passenger ceases, but, when one sustains to the carrier the relation sustained by the plaintiff in this case, we think a different rules applies. Being required by his contract to load and unload his stock, we are of the opinion that by the terms of the contract it must be held to extend to the final unloading of the stock. The stipulation is not limited, but provides that “all persons are thus passed only at their own risk of personal injury, from whatever cause.” This would seem to include loading and unloading as well as transportation in the train. The plaintiff was unloading the car under the terms of the contract, when the injury occurred. To hold that he was acting under the contract in loading the stock, — 583 — but still absolved from the stipulations of the contract as to defendant’s liability for injuries to him, would be giving to the contract a construction not warranted by its terms. The plaintiff was permitted to go on the train with, and to take care of, his stock; and he was in and about the car for that purpose when injured. In Poucher v. Railroad Co., 49 N. Y. 263, the plaintiff was injured before the train started from the depot, by a stick of wood thrown from the tender, and the court held that defendant was exempt from liability under its contract. In that case the court said: “The injury complained of was sustained by plaintiff while he was on the defendant’s premises, moving about the train on which his animals were laden, for the purpose of taking care of them, and engaged in the performance of that duty. His only business there was to take charge of the stock in pursuance of the terms of the contract. The train was about starting, and he was to go in it according to the terms of the contract, being provided with a free pass for that purpose. The c mtract provided that he should go or send some person on the same train with the, stock, to take charge of it, who. should be carried free of charge; and that such person so riding free should take all the risk of personal injury from whatever cause, whether of negligence of the defendant or its agent or otherwise. We do not think it necessary, to bring the plaintiff within the operation of this stipulation, that he should have been actually riding at the time of his injury. The train had been'formed, and was about to start. The plaintiff was there, under the contract, as a passenger, furnished with a pass,, entitling him to ride free, and coming from the performance of the duties contemplated by his contract.” We think that by a fair and reasonable construction of the contract the plaintiff, while unloading his stock, was within the terms of his contract, whether he was called a passenger or not. He was doing what the contract stipulated he should do, — unloading his stock under the contract; and defendants exemption from liability continued so long as the plaintiff continued to act — 584 — under the contract, or the contract was in force. It was evidently the intention of the parties in entering into the contract that the plaintiff was to assume all risk for personal injury from whatever cause, until the car was unloaded as provided in the contract. There were a number of other questions discussed in the briefs of counsel and in the oral arguments, but, as these questions may not arise on another trial, we do not deem it necessary to discuss them. Our conclusion is that, under the contract construed by the law of this state and the record on this appeal, the motion of defendant that the court direct a verdict in its favor should have been granted. The judgment of the court below is' therefore reversed, and a new trial is ordered.