Leonard v. Whitcomb

Maeshall, J. The court admitted evidence respecting the’ inspection which plaintiff made of the car before loading. This was objected to by defendants’ counsel, on the ground that the written contract required plaintiff to inspect the-car, and to assume the risk of defects in the floor, if there were any. This involves the question,.whether the stipulation by which the plaintiff, in form, assumed the risk of defects in the car, is valid and binding upon him. There is some conflict of authority, more apparent than real, respecting the validity of such stipulations; but the real principle involved has been settled in this court, and is not open to review. Railroads are common carriers of live stock, with the attendant common-law duties and liabilities respecting carriage of property generally by such carriers, subject to some restrictions and liabilities arising out of the instincts,, habits, propensities, wants, necessities, vices, or locomotion of the animals. Ayres v. C. & N. W. R. Co. 71 Wis. 372; Abrams v. M., L. S. & W. R. Co. 87 Wis. 485. Such duties and responsibilities require railroad companies to furnish suitable cars for the transportation of live stock on reasonable notice so to do, and render such companies responsible for damages for. negligence in that regard. Contracts exempting such companies from the consequences of such negligence are void. Abrams v. M., L. S. & W. R. Co., supra; Loeser v. C., M. & St. P. R. Co. 94 Wis. 571. Why the stipulation in the written contract in question, re [649] quiring plaintiff to examine the ear, and assume the risk of its suitableness, does not come within the condemnation of the foregoing, is not perceived. Numerous authorities are-cited by counsel for defendants to support the contention that a shipper may assume the responsibility of the suitableness, of a car furnished for his use, but a careful examination of the same shows that they are not applicable to the facts of this case. Ill. Cent. R. Co. v. Hall, 58 Ill. 409, was a case-where the shipper refused to use the defendant’s car and furnished one belonging to another road. The exemption from liability was placed on the ground that the defendant did not furnish the car, of agree to, but only to haul it over the-road; hence the defect complained of was not one contracted against by the company. In Squire v. N. Y. C. R. Co. 98 Mass. 239, damages from suffocation and overloading were-stipulated against; and the court held the stipulation valid, the fact being that the plaintiff’s agent caused the stock to-be loaded as they were, and observed the overloading and want of proper ventilation of the car before the transit commenced, and, in effect, agreed to have such transit commence and continue nevertheless. In East Tenn., V. & G. R. Co. v. Johnston, 75 Ala. 596, the stipulation was against damages from dangers known to -and acquiesced in by the shipper,, that had nothing to do with the suitableness of the car or the management of it. The .court in effect held that the duty to furnish suitable cars was absolute, and that contracts-limiting the common-law responsibilities for loss or injury caused by the carrier, or by its own negligence, are void. To the same effect are Mitchell v. Ga. R. Co. 68 Ga. 644, and Harris v. N. I. R. Co. 20 N. Y. 232. In the latter case the shipper selected the car. Nevertheless, the defendant was held liable, the evidence not showing that the shipper had actual notice of the defects that caused the injury. The court held, in effect, that the defendant was responsible for the suitableness of the car, and that, it was the duty of its650 agent to examine the car, and to call the shipper’s attention to all defects which a reasonably careful inspection by a competent person in that line of work would disclose; that, unless such defects were open and obvious, a failure of the agent so to do was the failure of the company, and constituted actionable negligence, for which a recovery could be had, notwithstanding the inspection and acceptance of the car by the plaintiff. Numerous other cases may be cited to the same effect. They are in entire harmony with Galveston, H. & S. A. R. Co. v. Silegman (Tex. Civ. App.), 23 S. W. Rep. 298; Gulf, C. & S. F. R. Co. v. Trawick, 80 Tex. 270; and Hunt v. Nutt (Tex. Civ. App.), 27 S. W. Rep. 1031, which distinctly hold that a railway company cannot by contract avoid the consequences of its negligence, and cannot release itself from the responsibility of furnishing suitable cars, by stipulating that the risks of defects shall be assumed by the shipper. Erom the foregoing we deduce the following: It is the duty of a railroad company, as a common carrier of live stock, to furnish suitable cars therefor, on reasonable notice so to do from a person desiring to transport such stock over its road; that this duty is absolute, and a contract exempting it from liability for damages arising from unsuitableness of cars so furnished, attributable to a failure on its part to exercise ordinary care, is void; that if a car be furnished having defects rendering it unsuitable, which defects are not obvious or such as may be presumed that an inspection by an ordinary person will bring to his knowledge, and yet are such that a reasonably careful inspection by a person experienced in such business will lead to their discovery, an inspection and acceptance of the car by the shipper will not save the carrier harmless from damages caused by such defects, unless it be shown that they were actually pointed out to the shipper, and that he accepted the car with full knowledge of their existence. [651] The foregoing conclusion renders it unnecessary to consider other questions presented on the appeal. They fall with the contention that plaintiff was bound by his acceptance of the car, pursuant to the contract of carriage. The jury found, under proper instructions, that the car was unsuitable, and that a reasonably careful examination of the same would have brought the defects to the attention of the company. Such defects were not obvious or of such a character that they would ordinarily be discovered by an inspection by an inexperienced person. The station agent was the instrumentality selected by the company to designate the car for plaintiff’s use; hence it was his duty to see that it was suitable for such use. The charge of the learned circuit judge, to the effect that it was the duty of the agent to inspect the car, and to discover all the defects which a proper inspection would disclose, and that his neglect so to do was the negligence of the company, was proper. No other question presented by the appeal appears to require special notice. By the Court.— The judgment of the circuit court is affirmed.