Selby v. . R. R. , 113 N.C. 588 ( 1893 )

(593) There was a verdict for the plaintiff, and defendant appealed. The relation between the parties to this action is not that of a common carrier towards a shipper of freight who had chosen to pay the usual tariff charges, and stand upon his rights, and hold the carrier to the performance of its duty under all the strict requirements of the common law. It was his privilege to demand of the carrier the shipment of his stock under those somewhat stringent but not unjust conditions. He has chosen not to avail himself of this privilege, and thus put his animals under the safeguard established by the law for (594) the protection of those whose property comes to the possession of a common carrier for transportation, but rather, for a valuable consideration, to waive this right of privilege and allow the defendant to assume simply the relation of a carrier of stock under a special contract which, no fraud or imposition being alleged, must be interpreted according to the ordinary rules of construction, and its provisions enforced, unless they are unreasonable and unjust — "if they are not in conflict with sound legal policy." Express Co. v. Caldwell, 21 Wall., 264.

Among other stipulations contained in the contract was one by which the plaintiff agreed, in consideration of the reduced rates granted "as a condition precedent to his right to recover any damages for loss or injury to said stock," that he would "give notice in writing of his claim thereof to some officer of said company or its nearest station agent before said stock is removed from the place of destination above mentioned, or from the place of the delivery of the same to said party of the second part, and before such stock is mingled with other stock." It seems to us that this condition, imposed upon the plaintiff by a contract of his own making, founded upon a valuable consideration moving to him, contravenes no sound legal policy, and is not unreasonable. It is not in any sense a stipulation that the defendant carrier shall be exempted from the effects of its negligence or the negligence of its servants in the performance of those duties towards the plaintiff assumed in the contract; nor is it a requirement that any injury that has been done to plaintiff's stock while in defendant's care under the terms of the bill of lading shall be adjusted in the presence of an officer of the defendant company before the property is removed from the station, and hence the case of Capehart v. R. R.,81 N.C. 438, has no application here. We have no stipulation at all as to the fixing of the amount of damage done to plaintiff's property, but simply an agreement that he will, when about to take his animals from the cars or yard of the defendant, notify the company in writing if, upon a reasonable examination, he is able (595) to detect any damage done them. Owing to the nature of the property intrusted to the carrier, the difficulty of identifying each animal, and the terms of the contract as regards such damage as might be inflicted by the animals on one another, or might come to them without any fault on the part of the defendant, it seems to us indeed very reasonable that the defendant's agents should have an opportunity then and there to examine the stock and ascertain if they can the cause and the extent of the damage. We have been cited to no authority which, upon examination, seems to hold that such requirement, under the circumstances, is unreasonable. Rice v. R. R., 63 Mo., 314; Goggin v. R. R.,12 Kan. 416, and other cases, seem fully to sustain the view we take of the matter, and to show that there was error in the charge that the stipulation was not reasonable and was void.

It is stated in the case that his Honor gave the jury the following instruction, which was excepted to: "It is the duty of the defendant company to provide suitable cars for transporting livestock. The car must be sufficiently strong to resist the struggles of the stock, and the company is liable for loss occasioned by its neglect in this regard, in spite of the fact that the animals are vicious and unruly, upon the principle that it is within its power to provide those which are actually and absolutely sufficient."

There was error here also, we think, for while it may be the duty of a carrier that undertakes to ship livestock to provide cars strong enough to safely transport animals that are ordinarily unruly, the law does not impose upon it so hard a task as to detect that some of them are vicious, and act accordingly. the vehicle must be suitable for the safe conveyance of ordinary animals of the class. It is not required that it shall be strong enough to withstand the struggles of some of that class that may be not only unruly, but vicious. (596)

As there must be a new trial for the error mentioned, we omit consideration of the other exceptions taken by defendant.

New trial.

Cited: Wood v. R. R., 118 N.C. 1063; Mitchell v. R. R., 124 N.C. 249,251; Jones v. R. R., 148 N.C. 385; Austin v. R. R., 151 N.C. 138;Stringfield v. R. R., 152 N.C. 138; Kime v. R. R., 156 N.C. 453; Hardenv. R. R., 157 N.C. 243, 250; Southerland v. R. R., 158 N.C. 329; Kimev. R. R., 160 N.C. 464; Mule Co. v. R. R., ib., 247; Duvall v. R. R.,167 N.C. 25; Culbreth v. R. R., 169 N.C. 725; Baldwin v. R. R., 170 N.C. 13;Mewborn v. R. R., ib., 210; Horse Exchange v. R. R., 171 N.C. 73;Schloss v. R. R., 171 N.C. 352.