St. Louis, Kansas City & Northern Railway Co. v. Piper

The opinion of the court was delivered by Brewer, J.: On the 27th of November, 1872, Piper shipped from the stock yards at Kansas City, by the railway of plaintiff in error, a lot of cattle to Chicago. The shipment was under a written contract, of which the following is a copy: “This agreement, made this 27th of November, 1872, between the St. Louis, Kansas City & Northern Railway Company, party of the first part, and G. W. Piper, care Hugh, Reeves & Sturgis, party of the second part, witnesseth: That the party of the first part will forward for the party of the second part the following freight, to-wit, two cars of cattle, 35 head, M. or L., from Kansas City to Chicago, at the rate of $70 per car, which is a reduced rate made expressly in consideration of this agreement, in consideration of which the party of the second part agrees to take care of said freight while on the trip, and load and unload the same at his or their own risk and expense, and that the party of the first, part and connecting lines over which such freight may pass shall not be responsible for any loss, damage, or injury which may happen to said freight in loading, forwarding, or unloading; by suffocation, or other injury caused by overloading cars; by escapes from any cause whatever; or by any accident in operating the road, or delay caused by storm, fire, failure of machinery or cars, or obstruction of track from any cause, or by fire from any cause whatever, or by any other cause except gross negligence; and that said party of the first part and such connecting lines shall be deemed merely forwarders, and not common-carriers, and only liable for such loss, damage, in [511] jury, or destruction of such freight as may be caused by gross negligence only, and not othei’wise; and the said party of the second part agrees to assume all risk of damage or injury to, or escape of, the live stock which may happen to them while in the stock yards awaiting shipment. It is also further agreed between the parties hereto, that the person or persons riding free under this contract in charge of the stock do so at their own risk of personal injury from whatever cause. Charges $28.50.” The transportation was delayed. The cattle were injured. Their value in the Chicago market was depreciated, and the shipper was put to extra expense for feed, etc., for all of which he brought his action before a justice of the peace of Douglas county. He recovered a judgment of $300 before the justice, from which the company appealed. In the district court he recovered a judgment of $280.15, and of this the plaintiff in error now complains. i Liability of pa^TcoSS'ot; negligence. [512] 2„ conSa£tOTys; testimony. [511] Upon the record two principal questions arise, and the first is, what liabilities were assumed by the plaintiff in error by contract? It is insisted by counsel that the company, except as to its own line, was simply a jorwar¿er¡ an(j ¿hat its responsibility ceased when it delivered the cattle in good condition to the connecting line. We think this is a mistake. The company contracted “to forward the cattle from Kansas City to Chicago;” and the word forward, as here used, seems to us to mean the same as “transport,” or “carry.” (Mer. Mu. Ins. Co. v. Chase, 1 E. D. Smith, 121.) Having contracted to carry the cattle to Chicago, a contract it was competent to make even though the carriage involved transportation beyond its own line, it became responsible as a common-carrier, except so far as it limited that responsibility by special contract. A common-carrier may by contract limit its common-law liability, but not so far as to discharge itself from loss occasioned by its own negligence, and this means ordinary negligence. By this contract therefore the plaintiff in error was only responsible for such injuries as resulted from its own negligence; but in this respect negligence on the part of any of the par [512] ties employed in the transportation was imputable to it. In this case the burden of proving negligence is on the part of the shipper. (K. P. Rly. v. Reynolds, 8 Kas., 624; Kallman v. U. S. Ex. Co., 3 Kas., 205.) And this brings us to what in our judgment is by far the most serious question in the case: Does the testimony show negligence on the part of the carriers? The case was tried before the district judge without a jury. There were no special findings of fact, but only a general finding 'for plaintiff. That finding finds all the facts necessary to sustain the judgment — finds, therefore, negligence on the part of the carrier. There is a direct and serious conflict in the evidence, and if the testimony of the company’s witnesses was accepted as true, the company was not responsible; and even the plaintiff’s evidence makes but a scanty showing of negligence. Still, the rule is well settled that limits the inquiry in this court to questions of law, and leaves questions of fact to be settled by the trial tribunals, to be disturbed only in cases of manifest error. The reasons of this rule have been often given, and its application enforced in very doubtful cases. See among others, School District v. Griner, 8 Kas., 224; Ulrich v. Ulrich, 8 Kas., 402; A.T. & S. F. Rld. Co. v. Stamford, 12 Kas., 354. And in this case there was some evidence pointing to negligence. The cattle were shipped via Mexico and Louisiana, to cross the river at the latter place. The transportation across the river at that point was by ferry. The road of plaintiff in error stopped at Mexico, and it could thence either ship by Louisiana, to cross on a ferry, or by Quincy to cross on a bridge. When the cattle reached Mexico, the agent there was aware of trouble in crossing at Louisiana, on account of ice, and was requested by Piper if there was any doubt about the crossing to send the cattle by Quincy. The agent however forwarded them to Louisiana. When the cattle reached the latter place they were unloaded, put into the stock-yards, and kept all night. The next morning the ferry boat ran on a bar, and was fast for several days. About eight days thereafter the cattle were taken out ’ [513] of the yards, crossed on a private ferry, driven fourteen miles, and then loaded on the cars and forwarded to Chicago. The cattle were some fwenty-six hours in transportation from Kansas City to Louisiana, while the ordinary running time between the two places was sixteen to eighteen hours. Eight or nine hours were consumed in stoppages between Kansas City and Mexico, and the regular stock train had already left the latter place when these cattle reached there. After a delay of some three hours, the cars were sent forward by a passenger train. Both the stock and the passenger train crossed that night at Louisiana. The agent there knew of the ice gorge in the river, and the uncertainty of crossing, and the probability of the ferry being stopped, and still caused the cattle to be unloaded and kept on the west side of the river, instead of crossing them as he could have done that night. The private ferry was running some three or four days before the cattle were crossed. It seems then, that but for the delay in the running of the train from Kansas City to Louisiana, and no explanation is given of this delay, the cattle would have crossed the river and been forwarded without loss or trouble to Chicago; that at Mexico, where the line of the plaintiff in error stopped, the agent knew of the doubt as to crossing at Louisiana, and still chose to forward the cattle by that route instead of by one which avoided all danger; and that at Louisiana, the agent, fully aware of the condition of the river, caused the cattle to be unloaded and kept on the west side, instead of crossing them, thereby assuming the risks of the interruption of the ferry. We are not prepared to say that there was manifest error in finding from the facts, of which the foregoing is a general statement, that the company was guilty of negligence, and therefore the judgment must be affirmed. All the Justices concurring.