l. Though where goods received at one place are to be
transported over several distinct lines of road to another and
distant one, the liability of the common carrier first receiving
them (where no special contract is made) is limited to his own
line, yet he may subject himself by special contract to liability
for them over the whole course of transit. And this is true of a
railroad corporation possessed of the powers given to railroad
corporations generally and subject to corresponding liabilities;
such railroad corporations,
ex. gr., as those incorporated under the general
railroad law of New York.
2. If there is competent evidence of such a contract thus to
carry put before the jury, the weight, force, or degree of such
evidence is not open for consideration by this Court.
3. What amounts to competent evidence. This matter stated in a
recapitulation of the evidence given in this particular case. A
waybill in which the heading spoke of the goods as goods to be
transported by the first road, from the place of departure to the
place at the end of the whole line, and at which the owner wished
to have them delivered,
held to be such evidence, whether
looked upon as a contract, or as a declaration or admission.
4. Where in such a line of roads as that described in the first
paragraph above, the common carrier owning the first road
undertakes to carry goods over the entire line -- part of the goods
being put aboard the cars on his line and a part to be put on at
its termination and where the next road begins -- the fare asked
and agreed to be paid being, however, the fare usually asked and
paid for the carriage over the whole line, and the contract being
for transportation over the whole road, and not for carriage to the
end of the first line and then for delivering to the carrier owning
the next road and for carriage by him -- the fact that a part of
the goods were put on the cars only where the second road begins
will not exonerate the owner of the first road from liability for
their loss.
5. Where on such a line of road as that in the said first
paragraph described, the second road posts its rules in the station
house of the first, a person furnishing goods for transportation
"through" is not to be held as of necessity to have notice of them
from the fact of such posting, and because he was often in the
station house of the first company where they were posted.
Independently of which, his contract being with the first company
only, and
it agreeing to carry for the whole distance,
its rules are the rules that are to govern the case.
Page 89 U. S. 124
6. If a common carrier by rail is negligent and careless in
furnishing cars, and so furnish cars unsuitable for the case --
even though they be cars for cattle, which cars the owner himself
sees, and which cattle the owner himself attends -- the carrier is
not relieved from responsibility even though there have been an
agreement that he shall not be responsible.
Error to the Circuit Court for the District of Massachusetts, in
which court J. Pratt and H. Brigham, of Boston, sued, by process of
attachment, the Ogdensburg & Lake Champlain Railroad Company, a
corporation of New York, to recover from that company damages for
the loss of certain horses which Pratt, for the two parties, had
put into the company's cars on its road in the said state, and
which had been burned to death, not on the said company's road, but
on the Vermont Central Railroad, a road in the state of Vermont
connecting with the former but not belonging to the same
corporation, but on the contrary belonging to a different
corporation, to-wit, a corporation of Vermont.
The case was thus:
In the northeastern part of New York there exists what is known
as the Ogdensburg & Lake Champlain Railroad. The road begins at
Ogdensburg, about ninety miles west of Lake Champlain, and runs
eastwardly through a place called Potsdam to Rouse's Point on the
said lake, at which point it strikes the boundary line between the
States of New York and Vermont.
This Ogdensburg & Lake Champlain Railroad Company was
incorporated under the general railroad law of New York, and
possessed the powers possessed by railroad corporations generally,
and was subject to the same liabilities as they generally are.
At Rouse's Point begins a new railroad, to-wit, the Vermont
Central Road; a different road, as already stated, and owned by a
different corporation, one created by Vermont. The rails of the two
roads, however, connect. This Vermont Central Road runs across the
State of Vermont in a southeasterly direction till it comes towards
the edge of Massachusetts, where it strikes a third road, which,
passing through Concord in that state, enters the City of
Boston.
Page 89 U. S. 125
At the Town of Potsdam, above spoken of as near the west end of
the Ogdensburg & Lake Champlain road, Pratt, already mentioned,
a transporter of horses, went, in March, 1868, to one Graves, who
was the station agent at Pottsdam of the Ogdensburg & Lake
Champlain road, and informed him that he wished two good "stock
cars" to carry certain horses for himself and Brigham to Boston.
Pratt thus testified:
"I have been for twenty years in the habit of buying horses (one
or two hundred a year), and of transporting them over the
Ogdensburg & Lake Champlain and the Vermont Central roads to
Boston. I have known Graves five or six years as station agent at
Potsdam. His office was in the freight house. He always furnished
me stock cars. This occurred from five to ten times a year. The
cars thus furnished by him went without any change right through
over these roads, and the arrangements made by him were always
recognized by the roads through to Boston. A week before the horses
for whose loss this suit is brought were brought to Potsdam, Mr.
Graves engaged to give me two good stock cars to carry them to
Boston. He did at the time appointed give me two cars, and I took
my horses to them. I objected to one of the cars. Graves said that
I must take it or wait for a week, as no others than these were
there. I took the car rather than wait, and repaired it as well as
I could. I put in some hay -- wet and rotten hay -- to keep the
horses from slipping. I always did that. One of the railroad hands
and I put it in on this occasion, and in full view of the office.
This railroad hand had been in the service of the company for three
or four years. I then told Mr. Graves that I wished to put in other
horses at Rouse's Point. He agreed to this. We agreed upon the
price, $85 per car, through to Boston, being the same price as if
all the horses had been put in at Potsdam, the horses to be
transported from Potsdam, some taken on there and some at Rouse's
Point. We had passes to go on the train which took our horses. I
always put my horses in and go on the cars myself to take care of
the horses, or else send a man. On this occasion, Mr. Brigham was
in charge all the way. I had no other man. You can't go in the same
car with the horses. A place called a box car was furnished for us.
The waybill was thus made out: "
Page 89 U. S. 126
image:a
"I saw the bill at Potsdam after it was made out."
The plaintiffs here put this question to the witness:
"In these acts of Graves in furnishing cars and making
arrangements for transportation through to Boston as testified by
you, for whom did he assume to act?"
The defendant objected to the question, asserting that the
witness could be asked only as to what was said and done, and that
the question was incompetent on this account, and as calling from
the witness an expression of his own opinion or inference. The
court admitted the question, and defendant excepting, the witness
answered:
"He assumed to act for the Ogdensburg & Lake Champlain
Railroad Company."
In consequence of the cars' being broken and very much exposed,
and sparks from the locomotive getting into them, the hay took fire
and the horses were burnt to death. This took place on the road of
the Vermont Central Company. Some of the horses were put in at
Rouse's Point.
No freight was paid on this particular occasion at Potsdam, and
indeed it was generally paid, in transactions between these
parties, in the depot in Boston.
The defendants produced Graves, the station master already
mentioned. He testified that there were several cars at Potsdam
when Pratt brought the horses to the station, and that he could
have had his choice, and as he, the
Page 89 U. S. 127
witness, supposed did have it; that all cars were examined
before being sent off, and if unfit were reported; that the cars
were "billed" as per the waybill above shown; that the freight
might have been paid in advance, but was not; that the witness knew
of no hay put into the cars; that it was against the rules of the
Vermont Central road to put any litter in them. Two men were
allowed to go free, one in each car.
The defendants also put in evidence certain rules printed on a
single sheet, entitled "Vermont Central Railroad Special Livestock
Tariff," which, after reciting certain rates of freight per ton,
contained, under the head of "DIRECTIONS," the following
provisions:
"In consideration of drovers' being permitted to ride free on
the same train with their stock for the purpose of taking charge of
it, it will in all cases be their duty or that of shippers of
livestock to examine cars before loading, and if they accept them,
the stock will be at their risk of loss or damage occasioned by
doors' being displaced or otherwise. Hay, straw, and like
combustibles will under no circumstances be allowed in a car with
livestock. Persons violating this rule will not only suffer all
loss which the same may cause to his or their own stock, but will
be held responsible for all damage caused by such violation,
whether it be to individuals or to the railroad."
They then introduced evidence tending to show that these rules
were posted up in the Potsdam station, and that the plaintiffs were
often there, and so must have seen them. The plaintiffs denied
being often in the station house, and testified that they had never
seen or heard of the said rules until after this loss occurred.
On the trial, the court having charged that the defendants would
not be liable for a loss occurring on any other railway in the line
unless at least they specifically and expressly contracted to
transport the horses through or beyond their own road to where the
accident happened; that otherwise they would be forwarders, and
their liability would be discharged by safely delivering to the
next road in the line, was asked by the defendants to charge
further thus:
Page 89 U. S. 128
"If the jury are satisfied that the plaintiffs at Potsdam
Junction, when they took the car in question, knew of its defects
and that it was unsafe and liable to catch fire and burn, having
full opportunity to see and examine it, and that they did see and
examine it and had full knowledge of its condition, and either
selected or accepted this when they might have had another car; or
if they consented to take this, and were allowed to take it at
their request and wish, they electing and proposing to do so, and
insisting upon it rather than wait a reasonable time for another
car, they by so selecting or accepting the car took their risk of
these defects, and cannot recover for losses occurring because of
them."
In lieu of the charge requested, the court charged as
follows:
"The common carrier is bound to furnish suitable vehicles and
means of transportation for the carriage of such articles as he
undertakes to carry and transport. If he furnishes unsafe or unfit
cars, he is not exempted from liability by the mere fact that the
shipper knew them to be defective and used them. Nothing less than
an agreement by the shipper to assume that risk would have that
effect. In this case, if the plaintiffs expressly agree to assume
the risks of defective cars rather than to wait a reasonable time
for other cars, they cannot recover."
The jury found for the plaintiff, and the Ogdensburg & Lake
Champlain Railroad Company brought the case here on different
causes of error, which were resolvable into these four
questions:
1. Had the Ogdensburg & Lake Champlain Railroad Company
power or right to contract as a common carrier to transport the
horses to Boston over another railroad and beyond its own
terminus?
2. Was there competent evidence given on the trial that the
company did so contract in relation to the horses in question?
3. Did the plaintiffs, by putting their horses into a car which
they knew was defective and unsuitable, thereby assume the risk of
such defects, and relieve the company from responsibility for the
same?
Page 89 U. S. 129
4. Was there error in admitting in evidence the waybill made and
forwarded with the property by the defendants or in allowing the
witness to state for whom the station agent assumed to act?
MR. JUSTICE HUNT delivered the opinion of the Court.
The several causes of error assigned present four separate
principles, and we will consider the questions which they raise in
their order. The questions may be thus stated:
First. As to the power of the railroad company to
contract as a common carrier for the transportation of property
beyond the terminus of its own road.
The distinction between the liability of a carrier in carrying
goods upon his own line and in forwarding them when the duty to
carry is at an end is well defined. In the language of MR. JUSTICE
DAVIS in
Railroad Company v. Manufacturing Company,
[
Footnote 1]
"It is the duty of the carrier, in the absence of any special
contract, to carry safely to the end of his line, and to deliver to
the next carrier in the route beyond."
What constitutes a sufficient delivery to the succeeding carrier
is often a difficult question, but we have no occasion to embarrass
ourselves with it here.
The fair result of the American cases limits the carrier's
liability as such, when no special contract is made, to his own
line, although there are cases which hold the liability as
continuing the same throughout the whole route, and such is the
English doctrine. A discussion on this point is unnecessary, as the
judge on the trial held the rule as we have stated it, and as was
most favorable to the defendants. He charged the jury that the
defendants were only liable upon a contract to be proved that they
had assumed a liability beyond that imposed by law.
The defendants were an incorporation organized under
Page 89 U. S. 130
the general railroad law of the State of New York. They
possessed the powers given to corporations generally, and were
subject to the corresponding liabilities. [
Footnote 2]
Assuming the case to stand upon the general principles
applicable to the question, the doctrine that a railroad company
may subject itself to the obligations of a carrier beyond its own
line has been distinctly held in the State of New York, where this
contract was made; in the State of Massachusetts, where its
performance was to be completed, and in the State of Vermont, where
the alleged injury occurred. [
Footnote 3]
In the case of
Burtis v. Buffalo & St. Lawrence
Railroad, supra, it was held that this principle applied to
connecting roads extending beyond the limits of the state. The
single exception to this holding, so far as we are aware, is in the
State of Connecticut, where the contrary has been held by its
supreme court. [
Footnote 4]
This case, however, does not stand upon the general principle
only. By the statutes of New York, [
Footnote 5] it is enacted as follows:
"Any railroad company receiving freight for transportation shall
be entitled to the same rights and subject to the same
responsibilities as common carriers. Whenever two or more railroad
companies are connected together, any company owning either of said
roads receiving freight to be transported to any place on the line
of either of said roads so connected shall be liable as common
carriers for the delivery of such freight at such place. In case
any such company shall become liable to pay any sum by reason of
the
Page 89 U. S. 131
neglect of any other company or companies, the company paying
such sum may collect the same of the company by whose neglect it
became so liable."
This statute is declared by Rappallo, J., in
Root v. Great
Western Railroad, [
Footnote
6] to be declaratory merely.
We do not see that there is room to doubt the power of the
company to make the contract in question.
Second. Was there evidence in this case that the
Ogdensburg & Lake Champlain Railroad Company did contract as a
common carrier to transport this property beyond its own terminus
over other roads to Boston?
The weight, the force, or the degree of the evidence is not
before us if there was competent evidence on which the jury might
lawfully find the existence of the contract alleged. [
Footnote 7]
Both the authority of Graves, the station agent, to make the
contract and the evidence of Pratt and others of the making of the
contract were questions of fact for the consideration of the jury.
If the jury have found in the plaintiffs' favor on these points
upon evidence legally sufficient to justify it, this Court cannot
interfere with their findings.
The evidence on both these points may properly be considered at
the same time. Pratt testified that he had for many years been in
the habit of transporting horses over the defendants' road to
Boston, to the number of two hundred a year, and that Graves had
been the station agent at Potsdam for five or six years; that
nearly a week before the present shipment, Graves engaged to give
him on that day two good stock cars to carry his horses to Boston,
and that the cars furnished by Graves had always come over these
roads and delivered the horses in Boston, and that the arrangements
made by him were recognized by the other roads; that Graves' office
was in the Potsdam freight house, and that he paid the freight
through, sometimes at Potsdam
Page 89 U. S. 132
and sometimes at Boston; that on this occasion he agreed with
Graves upon the price through to Boston,
viz., $85 a car,
and that a waybill was made out for the horses and cars to Boston
at the price mentioned. Other witnesses give testimony in
corroboration which it is not necessary to refer to. Graves
testified that he was the station master at Potsdam and that the
cars were billed from Potsdam to Boston, via Concord, as per bill;
that the price agreed upon was not paid in advance, but it might
have been.
The waybill was headed thus: "Waybill of merchandise transported
by Ogdensburg & Lake Champlain Railroad Company from Potsdam
Junction to Boston via Concord, March 28th, 1868." It describes the
two cars with horses, and as consigned to Pratt & Brigham at
Boston.
We see no sound objection to the admission of this waybill as
evidence. If a written contract, it was not only evidence, but the
best evidence of what the contract was. It was exhibited to Pratt
before the cars were started, as a part of the transaction.
If not a contract, it was an act done and a declaration made by
the agent in the very act of transacting the business, and as a
part of it, which brought it within the principle of the
res
gestae.
This evidence shows that the oral engagement was "to carry his
horses to Boston," not to carry to Rouse's Point and thence to
forward to Boston, but "to carry" as well and as fully over the
Vermont and Massachusetts roads as over the Ogdensburg road.
Again, a specific price was agreed upon for transportation over
the whole route. This was in accordance with the practice, and
whether paid at Potsdam or at Boston was unimportant. This practice
had been continued for years, and the jury had the right to hold
the contract to be the same, without reference to prepayment or
postpayment. The jury were justified in inferring that where a
carrier fixes a price for transportation over the whole route, that
he makes the entire contract his own. One who carries simply over
his own line, and thence forwards by other lines, would
ordinarily,
Page 89 U. S. 133
the jury may say, make or collect his own charges and leave the
remaining charges to be collected by those performing the remaining
service. Receipt of the entire pay affords a fair presumption of an
entire contract.
The language of the waybill is quite expressive. It describes
"merchandise transported . . . from Potsdam to Boston." Transported
or carried are equivalent terms, and quite distinct from the idea
of forwarding. Whether looked upon as a contract, or as a
declaration, or an admission simply, the waybill furnishes evidence
that the Ogdensburg company undertook to carry the horses to
Boston.
In
Root v. Great Western, [
Footnote 8] in speaking of the contract to transport as a
common carrier over other lines, the court said:
"Such an undertaking may be established by express contract, or
by showing that the company held itself out as a carrier for the
entire distance, or received freight for the entire distance, or
other circumstances indicating an understanding that it was to
carry through."
We think there was competent evidence before the jury that the
company undertook to carry this property to Boston, and the jury
having found such to be the fact, the other companies are to be
deemed the agents of the defendants, for whose faults they are
responsible.
Third. The loss, it is contended, arose from the
defective condition of the car in which the horses were placed
whereby it was exposed to danger from fire. It is said that Pratt
was aware of the defective condition of the car; that he
voluntarily made use of it, and that the risk of loss by its use
thus became his and ceased to be that of the company. The judge
charged the jury that it was the duty of the carrier to furnish
suitable vehicles for transportation; that if he furnished unfit or
unsafe vehicles, he is not exempted from responsibility by the fact
that the shipper knew them to be defective and used them; that
nothing less than a direct agreement by the shipper to assume the
risk would have that effect.
Page 89 U. S. 134
There was a conflict in the testimony upon the point whether
other cars were to be had. Pratt testified that he was compelled to
take these cars or wait with his horses for a week. The station
agent testified that there were other cars which Pratt might have
had if he preferred them.
The authorities sustain the position taken by the judge at the
trial.
In
New Jersey Steam Navigation Company v. Merchants'
Bank, [
Footnote 9] MR.
JUSTICE NELSON said:
"If it is competent at all for the carrier to stipulate for the
gross negligence of himself and servants or agents in the
transportation of goods, it should be required to be done at least
in terms that would leave no doubt as to the meaning of the
parties."
To this effect are the New York and Massachusetts cases before
cited.
In
Railroad Company v. Manufacturing Company, [
Footnote 10] it was declared that
the Court did not intend to relax the rule by which the liability
of carriers was established. In
Railroad Company v.
Lockwood, [
Footnote 11]
the following, among other propositions, were reiterated and
established by the unanimous judgment of the Court:
1st. That a common carrier cannot lawfully stipulate for
exemption from responsibility when such exemption is not just and
reasonable in the eye of the law.
2d. That it is not just and reasonable in the eye of the law for
a common carrier to stipulate for exemption from responsibility for
the negligence of himself or his servants.
The judge at the trial in this case might have gone much further
than he did, and have charged that if the jury found the company to
have been negligent and careless in furnishing cars, they would not
be relieved from responsibility, although there had been an
agreement that they should not be liable therefor.
Fourth. It is contended that there was error in the
admission of evidence on the trial. The admission of the
waybill
Page 89 U. S. 135
we have considered, and we think it was properly admitted.
When the plaintiff, Pratt, was on the stand as a witness, the
following question was put to him: "In these acts of Graves in
furnishing cars and making agreements for transportation through to
Boston, as testified by you, for whom did he assume to act?" This
question was objected to by the defendants, and the objection was
overruled. We think this question was erroneous in its form, and
that, as insisted by the defendants, he should have been asked to
state only what was said and done. The error was, however,
harmless. That Graves was acting for the Ogdensburg company was
disputed by no one. All that had been testified to showed it.
Graves himself testified that he was so acting, and there was no
evidence or pretense to the contrary either on the trial or the
argument. The question is as to the effect of his acts, and not as
to whether he acted for the company. His authority has not been
repudiated by the company at any time or in any form. We have often
held that we will not reverse a judgment on account of an error
which clearly appears to have produced no injury.
Two suggestions are made by the counsel for the plaintiffs in
error which require consideration.
The first is that the rules of the Vermont Central road forbade
the use of combustible material in the cars on their road, and that
if known to the plaintiffs, and the contract were made in reference
to them, the presence of this material in the car while on their
road was a bar to the action. The answer to this suggestion is
first that there is no competent evidence of such contract and
agreement, and second that the contract was made with the
Ogdensburg road alone. The shippers were strangers to the rules as
well as to the owners of the Vermont road. Their dealings were with
the Ogdensburg road only, one of whose agents aided in putting the
litter into the car, and the rules of which company were not
violated by that act.
The second suggestion is that some of the horses injured were
not placed in the cars till they were at Rouse's Point,
Page 89 U. S. 136
beyond the terminus of the defendants' road. The contract was in
substance for transportation over the Ogdensburg road of all the
horses. For the convenience of the shipper, he was allowed to put
them on board at different points. This was an incidental
circumstance merely, and does not affect the contract. If it
receives the full price for the transportation of all the property
from Potsdam to Boston, it is evidently to the advantage of the
company if it escapes the danger incident thereto for a portion of
the distance. The power to contract for the whole distance of all
the horses, and the making of such contract, and the receipt of the
compensation specified, fix the rights of the parties. The precise
details of its performance are not essential.
Judgment affirmed.
[
Footnote 1]
83 U. S. 16
Wall. 324.
[
Footnote 2]
New York, Laws of, 1848, p. 221; same, Laws of, 1850, p.
211.
[
Footnote 3]
Bissell v. Michigan Railroad, 22 N.Y. 258;
Buffett
v. Troy & Boston Railroad, 40
id. 168;
Root
v. Great Western Railroad, 45
id. 524;
Burtis v.
Buffalo & St. Lawrence Railroad, 24
id. 269;
Hill Manufacturing Co. v. Boston & Lowell Railroad
Co., 104 Mass. 122;
Feital v. Middlesex Railroad, 109
id. 398;
Noyes v. Rutland & Bennington Railroad
Co., 27 Vt. 110;
Morse v. Brainerd, 41
id.
550;
Railroad Co. v.
Manufacturing Co., 16 Wall. 324;
Evansville
& Crawfordsville Railroad Co. v. Androscoggin Mills.
[
Footnote 4]
Converse v. N. & N.Y. Transpiration Co., 33 Conn.
166; 22
id. 502.
[
Footnote 5]
Statutes of 1847, 299, § 9; 2 Revised Statutes, 5th
edition, 693, § 67.
[
Footnote 6]
45 N.Y. 524.
[
Footnote 7]
Dirst v.
Morris, 14 Wall. 484;
Mills v.
Smith, 8 Wall. 27
[
Footnote 8]
Supra, p.
89 U. S.
131.
[
Footnote 9]
47 U. S. 6 How.
344,
47 U. S.
383.
[
Footnote 10]
83 U. S. 16 Wall.
318.
[
Footnote 11]
84 U. S. 17 Wall.
357.
