Atchison, Topeka & Santa Fé Railroad v. Richardson

The opinion of the court was delivered by AlleN, J.: An elaborate brief is filed on behalf of the plaintiff in error, but there is no appearance in this court by the defendants in error. It appears from the plaintiffs’ petition that the shipments were made under written contracts, by the [161] terms of which the liability of the company as a common carrier was limited to its own line of road. There is no attempt to allege or prove any other or different contract from that contained in the shipping bills. Although the jury found in answer to special questions that there was a through contract to transport the onions from Leavenworth to San Francisco, there is neither an averment in the petition nor any evidence in the record to support such finding. In answer to the question as to whether or not Albuquerque was the western terminus of the defendant’s road, the jury answered, “We do not know.” There was direct and uncontradicted evidence showing that Albuquerque was the western terminus of the defendant’s road; that the freight was there delivered to the Atlantic & Pacific, an independent railroad company, and that it was delivered at San Francisco by the Southern Pacific, still another company. The syllabus of the case of Berg v. A. T. & S. F. Rld. Co., 30 Kas. 561, in which the opinion was written by Mr. Justice Brewer, reads as follows: “ Where a railroad company receives goods for transportation to a point beyond its line upon a special contract in which is no express agreement to transport to such point, but the place is only named as the point of destination, and in which it is expressly agreed that the goods are to be transported over the company’s road and delivered in good order to the connecting carrier, and that the company is not to be responsible as carrier beyond its line, and its liability as such is to terminate upon delivery of the goods to the connecting carrier, held, (1) that there is no uncertainty or ambiguity in the contract, and that it is clearly only a contract for transportation over its own line and delivery to a connecting carrier; (2) that such contract, being no contract for through transportation to the point of destination, presents no questions of an attempt to limit the common-law liability of the carrier as to anything happening beyond its own line; and (3) that the company transporting over its own line and delivering the goods in safety to the connecting carrier performs its contract and is not liable for any subsequent loss or damage.” That case is directly in point, and decisive of the one before us. Even assuming that the evidence, which is conflicting [162] and not entirely satisfactory, shows that the Leavenworth, Topeka & Southwestern railroad was operated by the Atchison, Topeka & Santa Fé, and therefore that its contract was binding on the defendant, there is absolutely nothing here showing either an attempt on the part of the defendant to limit by contract its common-law liability as a carrier of goods, nor an agreement to transport plaintiffs’ goods to their destination. In fact, the validity of the written agreement is alleged by the plaintiffs, and that written agreement expressly provides that the defendant’s liability shall terminate when the consignments are delivered to the connecting carrier. The evidence fails to show any great delay occurring on the defendant’s road, or that the apples or onions were injured any in transit to Albuquerque, the cars having reached Albuquerque in five and seven days respectively after shipment. The jury say they do not know, in answer to a question as to whether a large portion of the delay occurred west of Albuquerque. This finding is manifestly unfair, for it is apparent from the other findings that the principal time consumed was after the cars reached Albuquerque. As to the right of railroad companies to limit their liability to what happens on their lines, see also Myrick v. Mich. Cent. Rld. Co., 107 U. S. 102; Laws. Car., §§ 102, 236; Hutch. Car., § 1496; and cases cited in Berg v. A. T. & S. F. Rld. Co., supra. There is no evidence showing that the plaintiffs were injured by the negligence of the defendant. Many questions are discussed with reference to the rulings of the court on the admission of testimony, and also on the instructions. The report of the board of railroad commissioners for the year ending December 1, 1886, which was read in evidence, was not competent testimony as a report, but that part of the report which was certified to by the secretary of the board as a true and correct copy of the report of the defendant company, required by law to be made and filed with the board of railroad commissioners, was competent. The judgment is reversed, and a new trial ordered. All the Justices concurring.