Lapas attēli
PDF
ePub

But if the shipper freely and voluntarily chooses not to rely upon this absolute duty to furnish suitable vehicles, and takes upon himself for a sufficient consideration, in the form of a reduced rate or otherwise, the duty of selecting vehicles which are suitable for the goods he intends to have carried, he cannot hold the carrier liable for injuries arising from such patent defects as he ought to have discovered in his examination of the vehicles.43 But as to those defects which are not such that an ordinary inspection by the shipper would bring them to his attention, and yet which are such that a reasonably careful inspection by a person experienced in such business would lead to their detection, an inspection and acceptance of the vehicle by the shipper will not save the carrier harmless from damages due to such defects unless it can be shown that they were actually pointed out to the shipper, and that he accepted

business, and he is liable for an injury resulting therefrom, notwithstanding the shipper is aware of the defect." Paddock v. Railway Co., 60 Mo. App. 328.

43. Frolich Glass Co. v. Railroad, Mich. , 101 N. W. Rep. 223; Williams v. Railway Co., 117 Ga. 830, 43 S. E. Rep. 980; Railway Co. v. James, 117 Ga. 832, 45 S. E. Rep. 223; Ragsdale, Harper & Weathers v. Railway Co., 119 Ga. 627, 46 S. E. Rep. 832; Densmore Commission Co. v. Railway Co., 101 Wis. 563, 77 N. W. Rep. 904.

Where a shipper ordered a car for stock too late for the carrier to get it to him on time with due diligence on its part, and the shipper thereupon elected to send the stock in a box car, the carrier was not liable for an injury to the stock shipped in such box car, when it was willing to furnish a stock car on the next day. Huston v. Railroad Co., 63 Mo. App. 671. If the shipper is present when

the cars are bedded, and accepts the same, expressing his satisfaction therewith, the carrier will not be liable for alleged failure to properly bed the cars. Railroad v. O'Loughlin (Tex. Civ. App.), 72 S. W. Rep. 610.

A selection of unsuitable cars by the consignor will be binding on the consignee. Frolich Glass Co. v. Railroad Co., Mich.

101 N. W. Rep. 223.

44. Leonard v. Whitcomb, 95 Wis. 646, 70 N. W. Rep. 817; Railway Co. v. James, 117 Ga. 832, 45 S. E. Rep. 223; Railroad Co. v. Davis, 159 Ill. 53, 42 N. E. Rep. 382, 50 Am. St. Rep. 143, affirming 54 Ill. App. 130; Railroad Co. v. Holland, 162 Ind. 406, 69 N. E. Rep. 138, 63 L. R. A. 948; Hunt v. Nutt, (Tex. Civ. App.) 27 S. W. Rep. 1031.

If the defect relates to the commodiousness of the car, and the possible effect of larger accommodations upon the particular animal to be carried, and the ques

the vehicle with full knowledge of their existence.44 The burden of proof in a case of actual selection by the shipper is on the shipper to prove that a defect was not patent when he examined the vehicle.45

Sec. 509. Carrier's duty in furnishing cars for live stock.A common carrier who undertakes to transport live stock is bound to furnish cars reasonably safe for that purpose. This does not mean that he has fulfilled his duty in that respect when he has supplied cars that will merely hold or confine the stock while being carried, but that such cars shall be reasonably safe for transporting stock without injury from any causes that should be reasonably anticipated, considering the usual and ordinary propensities of the stock. It is to be expected that where animals are confined together in a car they are apt to crowd against the sides and, if horses or mules, it is not unusual for them to both kick and crowd. What would be a safe car for carrying one class of stock might not be for stock of another class. The carrier, therefore, in providing such cars, must see to it that they are constructed reasonably safe and sufficient to prevent injury, having in mind the ordinary habits of the animals delivered to him for transportation. 46 But he is not bound to anticipate and protion is discussed between the shipper and the carrier who informs the shipper that a more commodious car will be furnished if the shipper is willing to pay a larger rate of freight, and such larger rate is not unreasonable, and the shipper decides to take the cheaper car, and he himself attempts to guard against the want of room, it may be assumed from such facts that the shipper assumes the risks incident to such want of room. Coupland v. Railroad Co., 61 Conn. 531, 23 Atl. Rep. 870, 15 L. R. A.

534.

45. Williams v. Railway Co., 117 Ga. 830, 43 S. E. Rep. 980.

Iowa, 343, 60 N. W. Rep. 623, 26
L. R. A. 248, 54 Am. St. Rep. 558;
Leonard v. Whitcomb, 95 Wis. 646,
70 N. W. Rep. 817.

The carrier is liable for a defective door. Root v. Railroad Co., 83 Hun, 111, 31 N. Y. Supp. 357, s. c. 76 Hun, 23, 27 N. Y. Supp. €11.

The carrier is liable for defective slats. Railway Co. v. Rainey, 19 Colo. 225, 34 Pac. Rep. 986. But not when car is actually selected by shipper. Williams v. Railway Co., 117 Ga. 830, 43 S. E. Rep.

980.

The carrier is liable if the sides of a car are so constructed that a

46. Betts v. Railway Co., 92 slight kick from a horse or mule

vide for animals that may be extraordinarily unruly and vicious.47

If the carrier furnishes cars which are affected with any contagious disease, the shipper may recover such damages as he sustains.48 But if the shipper contracts to provide stalls, and the stalls furnished by him prove insufficient,49 or if he contracts to furnish bedding, and the bedding furnished is defective,50 he cannot recover damages from the carrier for consequent injuries to the animals.

Sec. 510. (§ 295d.) Same subject-Stational facilities— Cattle-yards. The duty of the carrier extends also to the providing of proper and reasonable stational facilities, such as platforms, warehouses, approaches, and the like.51 And in the case of a carrier of live stock, it includes the furnishing of proper yards, pens, gates and other appliances necessary to enable the stock to be received, loaded, unloaded, and delivered to the consignee.52 In providing pens at any point, how

would break them. Betts v. Rail- ute in Texas. Railway Co. v. way Co., supra.

The carrier is liable for defective bedding. Railroad Co. v. O'Loughlin, (Tex. Civ. App.) 84 S. W. Rep. 1104.

47. Selby v. Railroad Co., 113 N. C. 588, 18 S. E. Rep. 88, 37 Am. St. Rep. 635.

48. Railroad Co. v. Harris, 184 Ill. 57, 56 N. E. Rep. 316, 48 L. R. A. 175, affirming 84 Ill. App. 462; Bradford v. Railway Co., 64 Mo. App. 475.

49. New England, etc. Steamship Co. v. Paige, 108 Ga. 296, 33 S. E. Rep. 969.

50. Gilleland & Dillingham v. Railroad Co., 119 Ga. 789, 47 S. E. Rep. 336.

51. Mason v. Railway Co., 25 Mo. App. 473. See also post, in the case of passenger carriers, § 928 et seq.

Trammel, 28 Tex. Civ. App. 312, 68 S. W. Rep. 716.

The failure of a carrier to keep an agent or employe at a "country or plantation switch" for the purpose of receiving or guarding freight, or to keep fire apparatus there is not negligence when such switch is maintained merely for the convenience of planters who are thereby saved the expense of carting their cotton some miles to a regular station and where the risk seems to have been accepted as a consideration for the convenience afforded. Charnock v. Railway Co., 194 U. S. 432, 24 Sup. Ct. R. 671, affirming 113 Fed. 92, 51 C. C. A. 78.

52. Covington Stock Yards v. Keith, 139 U. S. 128; McCullough v. Railway Co., 34 Mo. App. 23; Lackland v. Railway Co., 101 Mo.

This duty is imposed by stat- App. 420, 74 S. W. Rep. 505; Chinn

ever, the carrier is only required to anticipate and make reasonable provision for the volume of live stock business which he ordinarily and usually transacts at such point.53 It is also his duty to keep the pens so furnished by him in a suitable condition for the purpose for which they are intended.54 Thus if he should permit the pens to become so out of repair that the live stock placed within them break out and are injured, he will be liable to the shipper for such injury.55 And where lambs were placed in stock pens, and the carrier negligently permitted salt water to flow into the pens, the carrier was held liable in damages for injuries resulting from the lambs drinking the salt water, although such injuries did not develop until after the lambs had passed into the possession of a connecting carrier.56

v. Railway Co., 100 Mo. App. 576, 75 S. W. Rep. 375; Railway Co. v. Farnbrough, (Tex. Civ. App.) 55 S. W. Rep. 188; Railway Co. v. Trammel, 28 Tex. Civ. App. 312, 68 S. W. Rep. 716.

Irrespective of a contract limiting liability in the carriage of live stock if the owner of the stock undertakes to unload it at such a time that the carrier or its servants may have no notice of what he is doing, and the stock is injured by breaking through a chute that is old and rotten and was selected by the shipper himself, the carrier having no knowledge of its intended use, no recovery may be had against the carrier. Candee v. Railroad, 73 Conn. 667, 49 Atl. Rep. 17.

Under a contract for the transportation and delivery of live stock, providing that live animals will only be taken at owner's risk of injury "during the course of transportation, loading and unloading," unless otherwise special

ly agreed, the carrier is bound to unload the animals although at owner's risk. The custom of the carrier's agent at destination to require the consignee or owner to unload live-stock, although known to the owner, cannot affect the contract. Benson v. Gray, 154 Mass. 391, 28 N. E. Rep. 275, 13 L. R. A. 262.

53. Casey v. Railway Co., (Tex. Civ. App.) 83 S. W. Rep. 20. 54. Texas, etc. Ry. Co. v. Felker, Tex. Civ. App. 90 S. W. Rep. 530; Railway Co. v. Dunman, (Tex. Civ. App.) 81 S. W. Rep. 789.

Whether the pens were suitable is a question of fact for the jury. Lackland v. Railway Co., 101 Mo. App. 420, 74 S. W. Rep. 505.

55. Cooke v. Railroad Co., 57 Mo. App. 471; Tracy v. Railroad Co., 80 Mo. App. 389.

56. Railroad Co. v. Harman, 91 Va. 601, 22 S. E. Rep. 490, 44 L. R. A. 289, 50 Am. St. Rep. 855.

Sec. 511. ($296.) Duty of carrier to accept goods for carriage. Being provided with the facilities for the transportation of goods of the character which he proposes to carry, and to which his means of conveyance are adapted, the carrier is under a legal obligation to receive all such goods as may be offered to him for carriage, provided they are offered at such place as he may appoint, or at which freight is customarily delivered to and accepted by him, unless, as we have seen, an unusual influx of business has made their present transportation impossible, or, as it is sometimes expressed, unless his coach be full; or unless they are offered at an unreasonable time, or at a time unreasonably long before that fixed for his departure; or the property by such delivery would be exposed to danger; or be of a dangerous character, or the carrier has reason so to believe, and the shipper refuses to disclose their true character;57 or where, either from the condition of the goods themselves, or the manner in which they are packed or otherwise protected or secured, they are in an unfit state to bear the necessary transportation.

Sec. 512. (§ 297.) He must carry for all alike and cannot show preferences. In all such exceptional cases, the carrier may refuse, if he will, to accept; and the law will excuse him. for so doing.58 But if he refuse, without some legal reason for so doing, to accept for carriage the goods, being such as he is accustomed to carry, of any person who is ready and willing to pay him his price for the carriage, he becomes liable to an action for damages for so doing. And not only is he, obliged to receive and carry such goods, but he is required to carry for all his employers alike. He can show no favors, nor make distinctions which will give one employer an advantage over another, either in the time or order of shipment, or in the distance of the carriage, or in the conveniences or accommoda-, tions which may be afforded.59 "Common carriers are bound

57. The Nitro-Glycerine Case, 15 Wall. 524.

58. Ante, § 144, et seq.

59. State v. Railroad Co., Neb.

[blocks in formation]

In Memphis News Pub. Co. v. Railway Co., 110 Tenn. 684, 75

101 N. W. Rep. 23; S. W. Rep. 941, 63 L. R. A. 150,

« iepriekšējāTurpināt »