Eckert v. Pennsylvania Railroad , 211 Pa. 267 ( 1905 )

Opinion by

Mb. Justice Mestbezat,

It was the duty of the defendant company not only to carry the plaintiffs’ horses to the terminus of its road at Jersey City, but also to deliver them at that point to the connecting carrier in a car properly constructed and suitable for the purpose of transporting them to their final destination. The failure to perform this duty is the basis of this action. The plaintiffs allege, and the jury has found, that the defendant company removed the horses from the Burton car at Jersey City and placed them in a car not arranged and fitted but utterly unsuitable for the safe carriage of the horses. This was a clear violation of the carrier’s common law duty, and the jury having found that this act of the defendant company resulted in the injury to the horses, the company’s liability necessarily followed. The fact that the person employed by the shippers to accompany the stock was present when the horses were transferred to an unfit car and assisted in making the change, did not relieve the company from the duty to furnish a suitable car. This person’s duty, as provided in the contract, required him to load and to unload the stock, to feed, water and care for it while in transit. He had no authority to select or furnish the car to which the stock was to be transferred at Jersey City. That was the duty of the carrier. The shippers had complied with their contract “ to inspect the body of the car or cars in which said stock is to be transported, and to satisfy himself that they are sufficient and safe, and in proper order and condition ” when they selected and had the defendant company procure for them the Burton car in which they loaded the stock at Reading, and which admittedly was a safe and suitable car for carrying their horses. The company received the stock from the shippers in this car to be transported to its destination at Readville, a suburb of the city of Boston, Mass. If subsequently the car en route became unsuitable for the purpose of shipping the horses, or for any other reason it had to be abandoned and the horses had to be transferred to another car, the selection and furnishing of a car suitable for transporting the stock to its destination devolved upon the carrier, and the failure to perform it would convict the company of negligence.

The defendant is not, under the facts of this case, in a position to insist upon the failure of the plaintiffs to deliver to it a verified written claim of their loss within five days from the time the horses were removed from the car at their destination. The horses were shipped from Reading, Pa., on Wednesday, June 11, 1902, and arrived at the freight station of the connecting carrier at Readville, their destination, about seven-thirty o’clock on Saturday evening, June 14. They were in bad condition, and Mr. Cummings, one of the plaintiffs, refused to receive them until he was directed by the railroad agent at that point to remove them from the car and to hand in his bill for damages. Cummings immediately wired Eckert, joint owner of the stock, at Reading, the condition of the horses. On the following Monday, as Mr. Eckert testifies, he communicated with Mr. Fraim, the defendant company’s freight agent at Reading, who had acted for the company in shipping the horses, “ and told him that our horses had met with an accident and we would hold the company responsible.” Fraim replied that “ he would report it to the proper authorities and let me know.” On Wednesday, June 18, Mr. Fraim wrote the defendant’s claim agent at Philadelphia, advising him of the change of cars, of the detention of the stock at Jersey City, of the injured condition of the horses, and that the plaintiffs would doubtless claim damages. Accompanying and attached to this letter was a statement of the billing showing date of shipment, the number of horses shipped, and their destination. This letter was turned over to Mr. Baer, the defendant’s live stock agent at Philadelphia, on June 20. Under this date, Mr. Eckert, who was at Reading, also wrote Mr. Fraim, advising him fully as to the facts of the shipment, the transfer of the stock to an unfit car, its detention and bad treatment at Jersey City, and its condition on arriving at Readville, and inquiring whether the company was willing to take up the question of damages, stating the value of the horses to be about $10,000. Mr. Fraim, in forwarding this letter on the same date to the company’s claim agent at Philadelphia, said: “Please see my letter to you dated June 18, regarding this shipment explaining about the same as Mr. Eckert has done in his letter attached.” On July 14, Mr. Baer wrote Mr. Eckert in reply to his letter to Mr. Fraim that “ I cannot see that any damage would occur ” by reason of the transfer of the horses to another car at Jersey City. It was not until the trial of the cause in November, 1903, nearly one year and a half after the plaintiff’s stock had been injured, that the company gave any intimation that it would resist the plaintiffs’ demand for damages because a verified written claim of loss had not been delivered within five days from the time the horses were removed from the ear at their destination.

It is true, as we have held, that a carrier may insert in its contract to transport live stock, a provision requiring notice of a claim for damages within a stipulated time, and such a provision is reasonable and will be enforced. But, as said in Pavitt v. Lehigh Valley R. R. Co., 153 Pa. 302: “It (the provision for notice of claim) is proper, because the demand promptly made gives warning and enables the carrier, while evidence is attainable and recollection is clear, to institute inquiry into the merits of the claim, and thus guard against fraud and overvaluation.” The purpose of the provision, therefore, and the reason for its enforcement by the court, is to enable the carrier to make a prompt investigation of the merits of the claim and thereby protect itself against imposition by the shipper. Being for the protection of the carrier, the latter may waive its right to enforce the provision. Pavitt v. Lehigh Valley R. R. Co., 153 Pa. 302; Hudson v. Northern Pacific R. R. Co. (Iowa), 54 Am. St. Rep. 550; Hinkle v. Southern Railway Co. (N. C.), 78 Am. St. Rep. 685. Here, as disclosed by the correspondence between the parties, the defendant company’s agents were in possession of all the facts relative to the loss and the cause of it within five days of the delivery of the stock. This fact and the subsequent conduct of the defendant company were sufficient to go to the jury on the question of its waiver of the right to insist upon a formal written claim of the plaintiffs’ loss; and hence, the court could not', as requested by the defendant, direct a verdict for the company on the ground that there had been no delivery of such a claim.

It is settled, as the authorities cited by the trial judge show, that for negligence by a common carrier in transporting goods intrusted to it, the shipper may, at his election, bring either an action ex contractu or an action ex delicto. It is also unquestionably the law of this state, as declared in numerous decisions of this court, that a common carrier cannot by contract limit its liability for the negligence of itself or its servants.

The able and exhaustive opinion of the learned trial judge, overruling the defendant’s motion for judgment non obstante veredicto and for a new trial, in which he considers all the questions raised on this appeal, renders any further consideration of the assignments of error unnecessary.

The judgment is affirmed.