Wells v. Great Northern Ry. Co.

Mr. Justice Moore

delivered the opinion of the court.

It appears from the bill of exceptions that on April 13, 1907, first-class passenger fare from Chicago, Illinois, to Portland, Oregon, over the lines of railway hereinafter named was $61.50, on which day plaintiff, for the sum of $33, secured at Chicago a coupon limited “colonist” ticket good for a passage from that city over the line of the Chicago, Burlington & Quincy Railway Company to St. Paul, Minnesota, thence over the line of the defendant, the Great Northern Railway Company, to Spokane, Washington; and thence over the line of the Oregon Railway & Navigation Company to Portland. The ticket contained, inter alia, the following clause: “(7) Baggage liability is limited to wearing apparel only, not exceeding $100 in value. I hereby agree to all the conditions of the contract” — which plaintiff signed. Wells testified that when he delivered to the railway agent at Chicago his trunk to be checked he was compelled to pay excess baggage; that, in answer to the inquiry of the baggage-master as to the contents of the trunk, he replied that it consisted of his watchmaker’s and jeweler’s tools and clothing; that, while making the journey, defendant’s train on which he was riding left the track, by reason of spreading rails, and the locomotive and baggage cars were burned, destroying his trunk and its contents; and, that at the time of the derailment the train was running pretty fast. The defendant offered no evidence respecting the cause of the loss. It is maintained by defendant’s counsel that, the ticket having been purchased at a reduced rate, the contract limiting the recovery was supported by an adequate consideration, and, such being the case, an error was committed in rendering judgment for more than $100.

1. By the principles of the common law the person who for hire undertook to carry for the public, goods that he customarily transported and which were left with him for that purpose was an insurer and could not escape liability for nonperformance of the contract, except by showing that his failure was occasioned by the act of God or the public enemy: Angell, Car. (4 ed.) §46; Lawson, Cont. Car. § 127; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 238 (32 Am. Dec. 455). “The law,” says Lord Chief Justice Holt in Coggs v. Barnard, 1 Smith’s Ld. Cas. (Hare & Wallace’s Notes) 369, 376, “charges this person thus intrusted to carry goods, against all events, but acts of God, and of the enemies of the king. For, though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point.”

To the original exceptions of the act of God or the public enemy, courts, in order to meet the reasonable requirements of a commercial age, have added exemptions from liability of a common carrier when a failure to transport or deliver goods arose from an act of public authority, an act of the shipper, or the intrinsic nature of the property intrusted to it: Hutchinson, Car. (3 ed.) §265; 6 Am. & Eng. Enc. Law (2 ed.) §265; 6 Cyc. 377.

2. A carrier of passengers, upon the sale to any person of a ticket good for a passage by a designated mode of conveyance from one pleace to another, by issuing to him a baggage check upon the delivery to it of his traveling effects, of a specified weight and properly incased, impliedly stipulates for the consideration thus received also to transport his personal baggage, and in caring for the receptacle and its contents is governed by the rule and subject to the exceptions applicable to common carriers of goods. Angell, Car. (4 ed.) §571; Woods v. Devin, 13 Ill. 746, 748 (56 Am. Dec. 483); Chicago R. Co. v. Fahey, 52 Ill. 81, 83 (4 Am. Rep. 587); Merrill v. Grinnell, 30 N. Y. 594, 609; Hannibal Railroad v. Swift, 12 Wall. 262, 273 (20 L. Ed. 423); Orange County Bank v. Brown, 9 Wend. (N. Y.) 85, 114 (24 Am. Dec. 129).

3. The right of a common carrier by an express contract that is reasonable and just to limit his liability as an insurer of goods when intrusted to him for transportation is well recognized: Lawson, Cont. Car. § 28; Moore v. Evans, 14 Barb. (N. Y.) 524; Normile v. Oregon Nav. Co., 41 Or. 177 (69 Pac. 928) ; Laing v. Colder, 8 Pa. 479 (49 Am. Dec. 533); Rose v. N. P. Ry. Co., 35 Mont. 70 (88 Pac. 767: 119 Am. St. Rep. 836); Gomm v. O. R. & N. Co., 52 Wash. 685 (101 Pac. 361: 25 L. R. A. (N. S.) 537); York Co. v. Central R. R., 3 Wall. 107 (18 L. Ed. 170); Bingham v. Rogers, 6 Watts & S. (Pa.) 495 (40 Am. Dec. 581); Atwood v. Reliance Transportation Co., 9 Watts (Pa.) 87 (34 Am. Dec. 494). Though a contrary rule may exist in England (Lawson, Cont. Car. § 25), public policy, in America, inhibits a bailee for hire, by any special agreement that he can make, to relieve himself from liability resulting from his negligence, and as a deduction from this principle it follows that, when a loss of or injury to goods arises from his carelessness or that of his agents, a contract attempting to limit liability in that particular is rendered nugatory: Angeli, Car. (4 ed.) § 267; Lawson, Cont. Car. § 28; Railroad Co. v. Lockwood, 17 Wall. 357, 381 (21 L. Ed. 627); Bank of Kentucky v. Adams Express Co., 93 U. S. 174, 183 (23 L. Ed. 872). In Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151 (78 N. E. 864: 8 L. R. A. (N. S.) 199: 9 Am. & Eng. Ann. Cas. 909), a different conclusion was reached; but the dissenting opinion of Mr. Justice Haight seems to present the better reason. The notes to that case show the conflict of authority on the subject under consideration. As illustrating the rule that an agreement endeavoring to exempt a carrier of passengers from liability occurring from its carelessness, it has been held that a railroad pass, given for a consideration, but having printed on the back of the ticket a declaration that the person accepting it assumed all risk of accidents resulting from negligence of the carrier’s agents, did not estop the passenger from showing that he was not subject to the conditions undertaken to be imposed: Railway Co. v. Stevens, 95 U. S. 655 (24 L. Ed. 535). It has been ruled that the liability of a railroad company does not depend on the fact that compensation for the transportation of a passenger has been paid to it, but that the same degree of care is imposed upon the carrier in the case of a person traveling on a free pass as in the case of a passenger paying full fare, and that the negligence of an agent from which injury results fixes upon the carrier a liability which cannot be avoided or limited by express contract: Gulf R. Co. v. McGown, 65 Tex. 640; Jacobus v. St. Paul R. Co., 20 Minn. 125 (Gil. 110: 18 Am. Rep. 360); Yazoo R. Co. v. Grant, 4 Am. & Eng. Ann. Cas. 556. See notes to latter case as to a contrary doctrine.

In Coward v. East Tenn. R. Co., 16 Lea (Tenn.) 225 (57 Am. Rep. 227), a ticket was purchased at a reduced rate containing the following clause: “None of the companies represented in this ticket will assume any liability on baggage except for wearing apparel, and then only for a sum not exceeding $100” — which provision, with full understanding thereof, the passenger assented to by appending his signature. Based on the ticket a trunk was checked that did not reach its destination until several hours after the passenger’s arrival, and it was then discovered that the lock had been filed, and a watch and chain and a diamond pin had been stolen. In an action to recover the value of the property taken, it was held that the jewelry was the customary wearing apparel of a lady occupying the station of the passenger, and that the payment of the reduced rate did not absolve the carrier from liability for its own negligence, which consisted in a failure to transport the trunk on the same train with the passenger; the court saying:

“The separation of the passenger and the baggage and their transportation by different trains is nowhere explained.”

And a judgment was rendered against the carrier for $1,400, as the value of the property stolen.

4. In the case at bar, the defendant undertook to escape liability for the watchmaker’s and jeweler’s tools, a reasonable quantity of which, when placed in plaintiff’s trunk for transportation, constituted a part of his personal baggage. Davis v. Cayuga R. Co., 10 How. Prac. (N. Y.) 330; Kan. R. Co. v. Morrison, 34 Kan. 502 (9 Pac. 225: 55 Am. Rep. 252); Porter v. Hildebrand, 14 Pa. 129.

5. The defendant was authorized to refuse the transportation of anything but personal effects of a passenger.

6. This was a right, however, which it could waive, and when Wells delivered to its Chicago agent a trunk, and asserted that it contained property not classified as baggage, the issuing of a check with knowledge of the contents rendered the carrier liable for the loss in case the derailing and burning of the car was occasioned by the negligence of its servants. 3 Thomp. Neg. § 3402; Oakes v. N. P. R. Co., 20 Or. 392 (26 Pac. 230: 12 L. R. A. 318: 23 Am. St. Rep. 126); Bergstrom v. Chicago R. Co., 134 Iowa 223 (111 N. W. 818: 10 L. R. A. [N. S.] 1119: 13 Am. & Eng. Ann. Cas. 239).

7. As the principles under which the freedom of contract and private dealings is restricted by law for the good of the community demanded that defendant should exercise due care in transporting baggage, we conclude that the ticket issued to him at a reduced rate, and the clause attempting to limit liability as to the character and the value of the contents of the trunk, though assented to by him, did not exonerate it from accountability for the loss if it resulted from the negligence of the carrier’s agents.

8. The burning of the trunk and its contents in the manner alleged in the complaint having been admitted by the answer, the remaining question to be considered is: Upon whom was cast the burden of proof as to whether or not the loss was caused by the negligence of defendant’s servants?

Though a limitation by express agreement may relieve a common carrier of liability for loss of or injury to goods intrusted to him for transportation, except for negligence of his servants, the preponderance of authority in America supports the doctrine that in cases of special contract the burden of proving negligence devolves on the shipper. Lawson, Cont. Car. § 248. In the next section this author observes:

“In Greenleaf on Evidence it is said: ‘And, if the acceptance of the goods was special, the burden of proof is still on the carrier to show not only that the cause of the loss was within the terms of the exception, but also that there was on his part no negligence or want of due care.’ 2 Green. Ev. § 219. This rule has the support of a few authorities.”

As upholding the principle thus announced, attention is called to several decisions, and among them to the case of Grey’s Ex’r v. Mobile Trade Co., 55 Ala. 387 (28 Am. Rep. 729), in referring to which the text-writer further remarks:

“It and the rule as stated by Mr. Greenleaf are certainly founded upon reason and public policy, but they lack, as has been seen, the support of authority.” Lawson, Cont. Car. § 250.

In case of injury to goods the carriage of which has been undertaken pursuant to an express contract made with the owner limiting liability, we believe that, as the common carrier is not a gratuitous bailee, the burden ought to be imposed on him to disprove negligence, which should be presumed from the failure to ship or deliver. This rule would require the proving of a negative; but, as the agents of the carrier must have a better knowledge of the origin and consequences of the loss than any other person, he should be required to show that the damage did not result from negligence. Any other rule would subject the shipper to much expense in attempting to discover the cause of the injury to or loss of his goods, and since this information can readily be supplied by the carrier he ought to be required to disprove negligence. If the burden devolved on the shipper, he might be compelled to rely upon the testimony of servants in the employ of the carrier whose hope of continual engagement might affect their sworn statements. For these reasons we think it was incumbent upon the defendant to show that the derailing and burning of the baggage car did not result from negligence.

9. In actions to recover damages based on carelessness, the proximate cause is any act or omission that immediately produces or fails to prevent the injury, or that which directly puts into operation another agency or force, or interposes an obstacle whereby injury is inflicted that would not have happened except for the original negligent act or omission. 8 Am. & Eng. Enc. Law (2 ed.) 571; 32 Cyc. 745; Hartvig v. N. P. L. Co., 19 Or. 522 (25 Pac. 358); Ahern v. Or. Tel. Co., 24 Or. 276 (33 Pac. 403: 35 Pac. 549: 22 L. R. A. 635); Robinson v. Taku Fishing Co., 42 Or. 537 (71 Pac. 790).

10. When in such an action the complaint sets forth the facts constituting the negligent act or omission, discloses, in logical sequence, the facts composing the secondary agency, force or obstacle, if any, and details the resultant injury and the damages, the pleading is sufficient.

11. In the case at bar, the complaint does not conform to these requirements, but, as the burden of proof rested on the defendant, a suggestion of negligence in plaintiff’s primary pleading was, in our opinion, adequate for that purpose. The defendant, probably relying on the weight of authority respecting the burden of proof, offered no evidence on the question of negligence.

12. Objection is made because the court did not make a finding as to the special contract alleged in the answer and denied by the reply. The finding that defendant was negligent, in consequence of which plaintiff’s trunk and its contents were destroyed, renders void the attempted limitation of liability, which conclusion determined the right of recovery, rendering it unnecessary to make any findings on such issue. Lewis v. First Nat. Bank, 46 Or. 182 (78 Pac. 990); Freeman v. Trummer, 50 Or. 287 (91 Pac. 1077); Naylor v. McColloch, Mayor, 54 Or. 305 (103 Pac. 68).

It follows from these considerations that the judgment should be affirmed, and it is so ordered.

Affirmed.