Heumphreus v. Fremont, E. & M. V. R. Co.

Kellam, J.

I concur in the foregoing opinion. The carriage contract contained two provisions, "which must be construed together, and so interpreted, if possible, as to make both operative: “It is agreed and understood that such owner and shipper shall feed, water, and take care of such stock at his own expense and risk;” and “Persons in charge of live stock, who are passed on trains with it, are so passed to take care of the stock, and must ride in the caboose attached to the train.” What we want to reach is the intention of the parties, for, in the construction of contracts, all rules are subservient to this end. Where did the parties to this agreement contemplate that Heumphreus should ride and spend his time in the transit, — in the box car, with- his horses, or in the caboose or passenger car? I think the contract itself answers these questions, and directly disproves that the care of the stock contemplated was such as to require the shipper to remain with it. If such care was contemplated it was utterly absurd to add, “ and must ride in the caboose,” for both parties would [mow that he could not " *114ride in the caboose, and at the same time be with the horses in the box car. Doubtless, the contract wag in the form generally in'use by that company, and was made for usual and ordinary conditions. There is nothing in this case suggesting that any unusual conditions existed, either as to the character or disposition or value of the horses, or in any other respect that would make this case any other than the shipping of two ordinary horses with other property in a car by themselves. The plaintiff recovered, not upon a showing that extraordinary conditions existed, presumably not within the contemplation of the parties, and so not necessarily covered by its terms, but upon evidence that in ordinary cases it is always necessary for the shipper to ride and remain with his stock, in order to take proper care of it. This seems to be, in form, a general contract for the carrying of live stock. Suppose this car had been filled with horses; could the plaintiff justify his riding and staying in the car with them, under the terms of the contract, by proving by witnesses that it was necessary so to do in order to take proper care of them? Such a holding would do an immediate wrong to the carrier, and an eventual greater wrong to shippers, for it would not only justify, but require, the carrier to greatly increase its charges, in order to get compensation, not only for carrying the stock, but for carrying the shipper in charge under an incomparably increased risk. I have no doubt what this contract meant. For carrying these horses the defendant company had undertaken and been paid for assuming a risk, as to them, limited to $200. As to the shipper, its risk was unlimited. It had a right to, and ordinary prudence would dictate that it should, minimize the risk, as to him, by requiring him to ride in the place of greatest safety. I think that, when Heumphreus made this contract with the company, he agreed that in the absence of intervening causes, which would change ordinary conditions, he would ride, not in the car with his stock, but in the caboose, and that the general judgment of witnesses that it was necessary for shippers of stock to ride in *115the car with it was not competent to defeat or change the terms or effect of the agreement. It seems to me that a contrary-ruling would necessitate the examination of a further question as to the effect of the concluding words of the stipulation. He was to ‘ ‘load, feed, water, and take care of such stock at his own expense and risk.” If he was'necessarily there taking care of the stock, was not he there “at his own risk,” except as to risk from such negligence as the company could not contract against? Upon the questions discussed, I agree with Judge Fuller.

Corson, P. J.

I am unable to concur in the views expressed in the majority opinion, and I shall attempt only a brief statement of my reasons for dissenting:

It may be conceded that if the deceased had been riding at the time of the accident in the caboose car, he would have escaped injury, as that car seems not to have been derailed or sustained any damage, and no passenger riding therein was injured. And it may also be conceded, as such seems to be the law, that when a person is injured while voluntarily, and without any necessity therefor, riding in a portion of the train where he has no right to ride, and in which place a person would be more likely to be injured from an accident to the train, and he is so injured by such an accident, which injury would not have been sustained had he been in his proper place on the train, he cannot recover for such injury. Railroad Co. v. Jones, 95 U. S. 439; Pennsylvania Co. v. Langdon, 92 Pa. St. 21; Lawson v. Railroad Co., 64 Wis. 447, 24 N. W. 618. In such case the passenger so riding without right or necessity on such a dangerous part of the train unnecessarily incurs the hazard, and therefore assumes the risk, and is deemed to be guilty of contributory negligence. The principal question, therefore, in thi§ case, is, was the deceased unnecessarily and without right riding in the car with his stock at the time of the accident? If he was, then the opinion of my asso*116ciates is correct. If he was not but was rightfully riding in that car, then, in nay opinion, the case was properly submitted to the jury, and their verdict ought not to be disturbed. To determine this question, a careful examination of the contract under which he was riding is necessary. This contract contains two important provisions. One reads as follows: “It is agreed and understood that such owner or shipper shall load, feed, water, and take care of such stock at his own expense and risk, and will assume all risk of injury or damage that the animals may do themselves or to each other, or which may arise from the delay of trains.” The other reads as follows: ‘Persons in charge of live stock, who are passed on trains with it, are so passed to take care of the stock, and must ride in the caboose attached to the train. ” It will be observed that by the first stipulation the deceased was required to ‘ ‘load, feed, water, and take care of such stock at his own expense and risk,” and by the second to ‘‘ride on the caboose attached to the train.” One of the cardinal rules for the construction of contracts is that the whole of the contract must be taken together, so as to give effect to every part, if practicable. Sec. 3556, Comp. Laws. What is the meaning of the expression, “take care of such stock?” It cannot mean to “load, feed, and water” them, as those duties are specifically provided for, in express terms. Taking care of them, therefore, implies other duties to be performed pertaining to the stock. Neither the court'below nor this court can say judicially what that clause means, or what constitutes taking care of a partial car load of stock, in addition to loading, feeding, and watering the same while in transit. Two sections of our code, it seems to me, prescribe the rule that is to be applied in such a case:

“Section 3559. The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning, unless used by the parties in a technical sense, or unless a special meaning is given ,t<? then?. ,by usage, in which case the latter must be followed.
*117“Section 3560. Technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense.”

The manner in which the words we are considering are used renders them clearly technical, or as having a special meaning given to them by usage among shippers of such partial car loads of stock. This provision of the contract, therefore, could only be understood or construed by the court by ascertaining, by means of evidence, what this expression is understood to mean by those familiar with the shipping of live stock in less than car load lots. This was the view evidently taken by the learned circuit court in admitting the evidence of witnesses as to the custom or usage of shippers of this class of stock in less than car load lots, and the necessity for the shipper’s riding in the car with his stock. Therefore, after the defendant had introduced the contract in evidence, and concluded its testimony, the plaintiff called witnesses to prove what was understood among shippers as constituting taking care of such stock while in transit. As an illustration, Mr. Black, after testifying as to his knowledge of the business of shipping horses in less than car load lots, was asked the question: “I will ask you if, in your judgment, it is necessary to ride with the stock, in order to take care of them, when they are thus shipped in less than car load lots. A. Yes, sir; I think it was.” He was then asked why it was necessary, and his answer was: ‘‘It is very necessary, if they get down, to help them up, in starting or stopping, or one car coming in contact with another car. I found it very necessary to help them up again, so no injury would result from their being thrown down.” “Now, I will ask you if it is necessary, for one to take proper care of them, to ride with them, in so shipping in less than car load lots. Yes, sir.” Two or three other witnesses testified to substantially the same effect, and no attempt was made to contradict this evidence. There was also evidence tending to prove that it was a usage or custom, in shipping *118less than, car load lots, for the shipper to ride in the car with the stock. Upon this evidence, can this court, or could the circuit court, say, as matter of law, that the deceased could not, under his contract, lawfully ride in the car with his stock, because, by the terms of his contract, he was required to ride in the caboose? I think the court would have no right to so decide. Upon this evidence as to what is required of a shipper who is bound to take care of his stock, the court should have, as it did, submitted the matter to the jury with the instruction that under the contract, if it was necessary to ride with his stock to take proper care of it, when it was so necessary he had the right to ride with his stock, and when not necessary he must ride in the caboose, and that it was for the jury to say whether or not the deceased was properly in the car with his stock when the accident occurred. This contract may reasonably be presumed to have been prepared by the defendant, and if there was any other meaning to be given to the term used in the contract, “taking care of such stock,” than that given to it by the witnesses on the part of the plaintiff, it should have shown what was generally understood by the use of this term in such contracts.

It would seem, from an examination of the cases, that railroad companies have no uniform rule in drawing this class of contracts. In Lawson v. Railroad Co., supra, the shipper was required to ride in the car with his stock. In Railroad Co. v. Dickson, 82 N. E. 380, 143 Ill. 368, the contract prohibited the shipper from riding in the same car with his stock, and required the shipper ‘ ‘to ride in the way car while the train was running between stops. ” And no provision such as we find in the contract before us was contained in that contract, so far as the statement of facts and the opinion discloses; yet in that case a shipper injured while in the car with his horses was permitted to recover on the ground that it was necessary to protect his property for him to be in the car. Certainly, if, under that contract, which absolutely prohibited the shipper from riding *119at any time with his stock, and requiring him to ride in the way car “while the train was running between stops,” and contained no clause requiring the shipper to take care of-his stock, in terms, the shipper could recover, we fail to see why the plaintiff may not be allowed to recover in this case.

My conclusions are that the evidence of both use and custom among shippers of live stock in less than car load lots, that the shipper usually rides with his stock, and the evidence of the necessity for. stock shippers to so ride with their stock, to take proper care of it, was properly admitted and submitted to the jury, and that under his contract, as sounder-stood, the deceased had the lawful right to ride with his stock, when necessary, and that whether or not he was properly there at the time of the accident was a question for the jury. The jury, by their verdict, having in effect found that the deceased was properly in the car with his stock, the verdict should not be disturbed.