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the credit of the state without an appropriation having first been
made. To hold that this section of the constitution prohibits
the legislature from doing this would, we think, be to construe
and use it as it was never intended to be construed and used, but
the interpretation which would allow indebtedness to be so in-
curred would certainly allow the making of the contracts chal-
'lenged by plaintiff.

Application for a peremptory writ of prohibition is denied.

The constitotions of the different states very generally provide that
-money cannot be drawn from the treasury except in parsaance of aa
-appr'^priation made by law ; Extended note to Can* v. State, 22 Am.
^U Rep. 638.

▲JL St. Bar., yob XLIZ.~07

Digitized by


898 MsuEH V. Chicago etc. Bt. Co. [S. Dakota^

Mbubb t;. Ghioago, Milwaukeb and St, Paul Ry. Ca

[5 Soon Dakota* 568.]

LAWS.— A contract made In one state, between a railroad comiiany
and a shipper for the transportation of freight from a point in that
state to a point in another state, and limiting the liability of the car-
rier, must be Interpreted according to the law of the state where made,,
but if an action upon such contract is brought in another state, the^
court does not take judicial notice of the law of the former state. and>
It must be alleged and proved the same as any other fact

OF LAWS.— If a contract Is made in one state, between a carrier and
a shipper, for the transportation of freight from a point in that state
to a point in another state, and an action is brought upon the contract
in the latter state, the court presumes, in the absence of evidence,
that the law of the place where the contract Is made Is the same aa
the state where the action Is brought, and the contract must be inters
preted according to the law of the latter state.

action is brought in one state upon a contract made in another state,
the court where the action is broug]|$ presumes the law of both atate*
to be the same.

carrier may limit his liability by express contract, except as to gross-
negligence, fraud, or willful wrong of himself or his servants.

between a carrier and a shipper, providing for the transportation of
livestock at a reduced rate and stipulating that the shipper shall be
entitled to pass free on the train to care for, feed, water, load, and-
unload his stock, at his **own risk of personal injury, from whatever
cause," relieves the carrier from all liability for any injury to the
shipper while a passenger or engaged in the execution of the contract,,
not caused by the gross negligence, fraud, or willful wrong of the car-
rier or his servants.

between a carrier and a shipper, providing for the transportation
of livestock, at a reduced rate, and stipulating that the shipper shall;
be entitled to pass free on the train to care for, load, and unload hls-
stock, at *'his own risk of personal injury, from whatever cause" re-
lieves the carrier from liability for personal injury received by the
shipper while unloading his stock at the place of destination after he
has left the cars as a passenger, although such injury is caused by the
ordinary negligence of the carrier or his servants. In such case the
carrier can be held liable only for gross negligences fraud* or willful^
wrong of the carrier or his employees.

J. H. Perry and H. H. Field, for the appellant

J. Bennett and W. S. Glass, for the tespondeni

•» COBSON, P. J. In Maich, 1887, the plainttfl shipped^
from Avoca, Wisconsin, a carload of livestock and emigrant mova-
bles over defendant's road, consigned to himself at Bristol, Da-
kota territory. The car containing the freight arrived at Bristol,,
and the plaintiff, while removing the livestock from the car,

Digitized by


Juljf 1894] Mbueb 9. Chicago etc. By. Go. 899

iBJuredy to recoyer for which this action is brought The live-
stock and movables were shipped under a special contract, by the
terms of which the plaintiff was permitted to pass on the train to
care for and look after his stock. The nucteiial parts of the con-
tract, so far as they affect this case, are as follows:

Exhibit A.

'^Chicago, Milwaukee & St Paul Railway. livestock Contract
.... Persons in charge of livestock will be passed on the train
with, and to care of it, as follows; One man with two or three
ears, two men with four or seven cars, three men with eight can^
which is the maximum number that ¥rill be passed for one owner.
Passes will be furnished, in manner provided on back of this con-
tract, to persons, who, as above, may have been in charge of two
or more ^^ cars of stock. No return passes given on westbound
•hipmenta. No person will be passed with one car of livestock,
except that one car of horses or mules or emigrant movables con-
taining livestock will entitle the owner or man in charge to pass
one way on the same train, to take care of it • • • • Such entry
of persons in charge and eertificate of billing agent to that effect
will be the authority of conductors to pass them with the stock.
All persons are thus passed only at their own risk of personal in-
jury, from whatever cause. A. C. BIRD,

^General Freight Agent*

''Beceived of Anton Meuer, one car livestock and emg. mov. as
per margin, to be delivered at Bristol, Dakota, station at special
rates, being (46.00 per car; which stock is to be loaded and un-
loaded, watered and fed by said Anton Meuer, or his agents. ....
The CSiicago, Milwaukee & St Paul Railway Co., by D. Bohan,
Agent Anton Meuer, Shipper." Indorsement on back: 'Tar-
ties actually in charge of and accompanying the within stock
must write their own name in ink here. [Signed] Anton Meuer.'^

The contract was introduced in evidence by the plaintiff. At
the dose of the plaintiff's evidence, and again at the close of all
the evidence in the case, the defendant moved the court to instruct
the jury to return a verdict for the defendant, on the ground that,
by the terms of the contract, the plaintiff assumed all risk ''of in-
jury, from whatever cause,'' and could not, therefore, recover in
this action. These motions were denied, and exceptions duly

The learned counsel for the appellant contend that, under the
terms of the contract signed by the plaintiff, he agreed to assume
all the risk of personal injury, from whatever cause; that such a
contract was authorized by the laws of this state, and was a legale

Digitized by LnOOQ IC

900 MsuEB V. Chicaoo sra By. Co. [S. Dakotai

yalid^ and binding contract, exonerating the defendant from all
liability for personal injuries to the plaintiff, from whatever cause
receiyed. They further contend that the contract, though made
in Wificonidn, would neyerthelees be ^^^ interpreted by the laws
of this state, in the absence of eyidence as to the laws of Wiscon-
sin in relation to the contracts of common carriers, and that the
law of Wisconsin will be presumed to be the same as the law of this
state relating to such contracts. The contract in this case, haying
been made in Wisconsin, may be regarded as a contract of that
state, and to be interpreted in accordance with the laws of that
state: liyerpool etc. Co, y. Phenix Ins. Co., 129 XJ. S. 397; Hazel
y. Chicago etc. Eailroad Co., 82 Iowa, 477. This court, howeyer,
will not take judicial notice of the laws of another state. Such
laws must be alleged and proven on the trial, the same as any other
facts in the case. No such evidence appears from the record in
the case to have been given. In the absence of such evidence, this
court will presume that the law of Wisconsin as to the right of a
common carrier to limit the liability of himself or servants is the
same as the law of this state upon that subject: Sandmeyer v. Da-
kota etc. Ins. Co., 2 S. Dak. 346. There is some conflict in the
decisions of the different courts upon the question as to whether or
not the court will presume that the law of another state is the
same as the statute law of the state where the action is tried, but
the weight of authority seems to support this view. In the case
of Palmer v. Atchison etc. E. B. Co., 101 Cal. 187, decided by the
supreme court of California in the present year, the court says:
'^he cause, so far as can be determined from the record, was tried
upon the theory that the law of California is applicable. There
is no suggestion that the law of Missouri, where the contract for
transportation was made, was put in evidence. Under such cir-
cumstances, we are not at liberty to assume as a fact that the state
of Missouri has a special statute on the subject, but must presume,
as a question of law, that the law of that state is the same as our
own: Norris v. Harris, 16 Cal. 226; Hill v. Grigsby, 82 Cal. 66;
Taylor v. Shew, 39 Cal. 640; 2 Am. Eep. 478; Brown y. San Fran-
cisco Gaslight Co., 68 Cal. 426; Maretera v. Lash, 61 Cal. 622;
Shumway v. Leakey, 67 Cal. 468. Judged ^'^ by our own statute,
and by the lawful limitation which defendant might and did em-
brace in its bill of lading, it was bound to transport to Albuquer-
que, and deliver to the Atlantic & Pacific connecting road, within a
reasonable time, plaintiff's goods'': See, also, 19 Am. ft Eng.
Ency. of Law, 47; Neese v. Farmer's Ins. Co., 66 Iowa, 604; Walsh
▼. Dart, 12 Wis. 636; Hadley v. Gregory, 67 Iowa, 167.

Digitized by


July, 1891.] MsujSA v. Chicaqo arc. By. Cow fK)l

The first question, then, to be detennined is, What is the law of
this state as to the right of a common earner to limit his liability?
for the contract in this case must be interpreted by our law upon
this subject There is a direct conflict in the decisions of the
Tarious courts upon the question of the right of common carriers
to limit their common-law liability for the negligence of them-
selves and their servants by special contracts. In Bailroad Co. r.
Lockwood, 17 Wall. 357, the supreme court of the United States
held that common carriers do not possess the power to limit their
liability, even by express contract, for the negligence of themselves
or their servante; and this view was afiSrmed in Liverpool etc Co.
T. Phenix Ins. Co., 129 XT. S. 897. On the other hand, the court
of appeals of New York, in a number of cases, has held that com*
mon carriers possess such power. This doctrine is clearly laid
down in Bissell v. New York etc. B. B. Co., 26 N. Y. 442, 82 Anu
Dec. 369, and afiSrmed by that court, after the decision in Bailroad
Co. T. Lockwood, 17 WalL 357, in Mynard v. Syracuse etc. B. B.
Co., 71 N. Y. 180; 27 Am. Bep. 28. This court, howev^, is not
called upon to decide between these conflicting opinions, as the
code of this state has settled the question within this jurisdiction:
Hartwell v. Northern etc. Express Co., 6 Dak. 463; Hasel r.
Chicago etc. Co., 2 Iowa, 477; Eirby v. Western Union TeL
Co., 4 S. Dak. 106; 46 Am. St Bep. 765. The sections of the
code bearing upon this question constitute sections 3881 to 3888 of
the Compiled Laws, and read as follows: ''Everyone who offers to
the public to carry persons, property, or messages is a common
carrier of whatever he thus offers to carry." ''Sec 3886. The
obligations of a common carrier ^^^ cannot be limited by general
notice on his part^ but may be limited by special contract.'' "Sec.
8887. A common carrier cannot be exonerated, by any agreement
made in anticipation thereof, from liability for the gross negli-
gence, fraud, or willful wrong of himself or his servants.^' "Sec
3888. A passenger, consignor, or consignee, by accepting a ticket^
bill of lading, or written contract for carriage with a knowledge
of its terms, assents to the rate of hire, the time, place, and man-
ner of delivery therein stated. But his assent to any other modifi-
eation of the carrier's rights or obligations contained in such in-
strument can only be manifested by his signatore to the same.*^
By section 3886 it will be noticed that common carriers may, in
this state, limit their liability by special contract; and by section
3887 an exception is made in cases of "gross negligence, fraud, or
willful wrong.'' It would seem, therefore, that, subject to the ex-
ceptions specified, a common carrier by the laws of this state, may.

Digitized by


902 Mbueb v. Chicaoo etc. Rt. C!a [S. Dakota,

by special contract, limit his common-law liability in all cases not
included in the excepted caaes. This case seems to haye been
tried, and the jury instructed, upon the theory that the defendant
notwithstanding the stipulations in the contract, was liable for the
ordinary negligence of itself and servants, and the question of gross
negligence is eliminated from the case. The record discloses the
fact that the defendant's counsel requested the court to instruct the
jury that there was no evidence of gross negligence, and it was re-
fused, the court stating ''that he did not submit ilie question of
gross negligence to the jury, but simply the question of ordinarj
negligence/' We shall assume, therefore, for the purpose of this
decision, that there was no evidence of gross negligence, fraud, or
willful wrong on the part of the defendant or its servants, and that
the verdict of the jury was based entirely upon the theory that the
injury to the plaintiff was caused by the ordinary n^ligence of the
defendant or its servants. Taldng this view of the case, was the
defendant entitled to have his motion for an instruction to the
jury to find for the defendant granted ^"^ at the close of the plain-
tiff's evidence? As before stated, the special contract was intro-
duced in evidence by the plaintiff, and was, therefore, a part of the
plaintiff's case. It appears from this contract between the parties
that defendant, in con^deration of the plaintiff's stipulations to
load and unload the car, and feed and water the livestock on the
trip, agreed to transport the car of stock and household movables
at a reduced rate, and to pass the plaintiff on the same train to care
for and look after the livestock, but at plaintiff's ''own risk of
personal injury, from whatever cause.''

Assuming that plaintiff's injuries occurred while such passenger
upon the train, and that they occurred from the ordinary n^Ii-
gence of the defendant or its servants, the limitation in ^e con-
tract would seem to be such a one as is permitted by the statute,
and would exonerate the defendant from liability for the injuries
plaintiff sustained, the contract being a special contract, and
signed by the respective parties, as required by the statute. The
terms of the contract are clearly stated. There is no ambiguily in
its stipulations, and the intention of the parties is dearly ascer-
tainable from the terms of the contract. The plaintiff was, by
the terms of the contract, to be carried upon the same train with
his livestock and movables, without extra charge, to care for and
feed and water his stock, but at his own ''risk of personal injury,
from whatever cause." This contract the law permitted the par-
iics to make. Section 3881 defines who are common carriers, and
section 3886, in the same chapter, provides "that the obligations

Digitized by


July, 1894.] Meueb v. Chicaqo etc. Rt. Ca 908

at a common carrier • • • • may be limited by special contract
And flection 3887 uses the same general term^ '^a common carrier,''
•etc. Interpreting the contract by the law, it is difficult to per*
ceiye any yalid reason for holding the defendant liable for plain-
tiff's injury. The contract, as we have seen, is one which the law
fiermits the common carrier to make, and by its terms it clearly
exonerates the defendant from liability for injuries caused by
-^^ the ordinary negligence of the defendant or its serrants. The
motion, therefore, should hare been granted. The learned coun-
eel for respondent contend that under the law of this state the con-
tract is Toid. It 18 not claimed that the legislation of this state is
not within the proper ezerdse of the legislatiye power, or is in
violation of the organic act or the state constitution. But it is
contended that under the common law a common carrier of pas*
eengers is required to exercise the utmost diligence and the highett
degree of care and prudence in tnnsf erring paesengen from one
place to another by steam power, and that 'Uere has nerer been
any attempt to relu th e rule requiring tbe utmost irigilance by the
eaniers of passengers in operating by this mode of conreyanoe.'*
The requirement in this case being the most exact that the law
imposes, no matter what the relation may be, any failure or omi**
flion of tiie person upon whom the duty rests is negligenoe, and thia
negligence is not subject to division into degrees; hence tiie courts
hold that any negligence of a carrier of psssengers is gross negli*
gence. The counsel, after further aigument, candudea as fol*
lows: '^e therefore conclude, in Tiew of the law, as established
by the judgments of the courts, placing upon the caniets of per-
sons the responsibility of exercising the greatest degree of eaie and
Tigilance in the oonveyanee of human beings, that section 8887 of
the Compiled Laws does not rdiere from responeibilitj the eairiers
of persona in cases where negligenoe is shown, eren though tiie
carrier has a pretended release tram liability in the form oi t
special contract That while the section apparently applies to
common carriers in general, it must be limited in its operation to
carriers other than those who engage in the transportation of per*
sons." WhUeit is true that the utmost care is required on the park
of the carrier of passengers, and that such carrier is ordinarily lia-
ble for negligence, whether gross, ordinary, or slight, still there
may be, in fact, degrees of negligence in the management of its
business by itself or its seryants; and it is '^ upon this theory that
the legislature has deemed it proper to permit such carrier t»
limit its liability for ordinary or slight negligence, when, under
the law, it would ordinarily be held for injuriea to persMS <

Digitized by


904 Meusb 9. Chicago nc. Ry. Co. [S. Dakota,,

{hereby. The lawmaking power might properly permit special
contracts exonerating snch carriers from liability^ when injury
is caused to a person by ordinary or slight negligence, or e^en by
gross negligence^ if it deemed it proper. In New York, as we have
seen, and other states, such contracts are permitted, and hdd yalid,
even without the aid of a statute. We are unable to discoyer any
reason for holding that the lawmaking power may not make any
provision gOTeming the liability of common carriers, and author*
izing them to limit their liability as it may deem proper.

It ia further contended that the contract in this case ia inyalid^
under the provisions of section 3578 of the Compiled Laws, which
reads as follows: ''All contracts which have for their object^ di-
rectly or indirectly, to exempt any one from responsibility for hia
own fraud, or willful injury to the person or .property of another,
or violation of law, whether willful or negligent, are against the
policy of the law.'' But the contract in this case is not a contract
to violate any express law. It cannot be said that a contract per-
mitted and sanctioned by express law is a contract to violate the
law. If we are correct, the sections of the statute relating to com-
mon carriera permits common carriera of passengers, as well as
common carriera of property, to make the contract in qneetion,
subject, of course, to the exceptions contained in the law. The
argument of counsel would have much more weight as applied to
carriera of freight than as applied to the carriera of passengera, as
carriera of freight at common law were absolute insurera of the
safe delivery of the property intrusted to them, except where the
loss occurr^ ''by the act of Ood, or the public enemy, or by their
own decay from inherent infirmity, or by the fault of the owner
thereof.'' Further exceptions are made in the carrying of liye-
stock not material now to be stated. If, ^^^ therefore, the conten-
tion of counsel is correct, the statute could have no effect, as there
would be no class of carriera to which it would apply. We are of
the opinion that the statute does apply to carriera of paasengen as
well as to carriera of freight, and we cannot assent to the conten-
tion of counsel for respondent that the contract in this case is

The counsel further contend that as the stipulation in the eon-
tract is general, and does not spedfioally limit the liability of the
defendant to the negligence of itself or servants, such negligence is
not included; in other words, the language of the stipulation, "risk
of personal injury from any cause," does not include injury
caused by the negligence of the defendant or its servants. Then
is toTce in this contention, and it has some support from the New

Digitized by


Juljy 1894.] Meuieb v. Chicago sto. Ry. Ca 906

York deddoDfl. The doctrine is thns stated in Mynaid r. Syra-
cuse etc IL IL Co., 71 N. Y. 180: 27 Am. Bep. 28: '"When gen-
eral irords may operate without including the negligence of the
carrier or his seryants, it will not be presumed that it was in-
tended to include if But this doctrine has generally been ap-
plied to contracts by carriers of freight And even in this dass of
cases, when there is nothing in the contract upon which the gen-
eral words can operate, unless the negligence of the defendant
or his senrants is included, such negligence is included in the gen-
eral words, *^toT whatever cause.'' This doctrine is illustrated in
Cragin y. New York Cent B. B. Co., 51 N. Y. 61, 10 Am. Bep.
669, and Holsapple t. Borne etc. B. R Co., 86 N. Y. 276. In the
former case the court says: 'In this case the plaintiAi assumed
and agreed to take the risk of injuries to the hogs in consequence
of heat Effect should be given to this stipulation. The parties
must be held to hare meant something by it In consideration
that the plaintiffs would assume and take certain risks, which
would otherwise devolve upon the defendant, it agreed to carry at
a reduced rate. If it be held that this stipulation simply exempts
the defendant from liability for injuries to the hogs from heat
without any fault on his purt, then it gets nothing; for in such
case, without the stipulation, it would not be responsible. ^^
Force and effect can be given to this stipulation only by holding
that it was intended to exempt the defendant from negligence,
in consequence of which the hogs died from heat The judge
at the trial, however, entirely ignored this special contract, and
put the case to the jury upon the defendant's common-law respon-
sibilii7, charging that it was liable if they found it guilty of neg-
ligence in the transportation of the hogs; and he refused to the
defendant any benefit whatever from the special contnu^t In
this I cannot doubt the learned judge erred." In the latter case
the court says: ''The doctrine of Mynard v. Syracuse etc. B. B.
Co., 71 N. Y. 180, 27 Am. Bep. 28, is decisive upon this question.
It was there held that where general words limiting the liability
of a carrier may operate without including his negligence or that
of his servants, such negligence will not be within the exemption
of the agreement To this extent, at least, we all concur. How-
ever broad or general may be the language of the contract which
does not specifically and in express terms release the carrier from
the consequences of his own negligence, it will not effect such re-
lease, if the general words may operate without including such
negligence. That is the case here. The predse injury might
have occurred which actually happened without fault or negli-

Digitized by


906 Meueb v. Chicaqo xtc. By. Co. [S. Dakota,

gence on the part of the carrier. • • . • It is in this respect that
the present case differs from that of Cragin y. New York etc
B. B. Co., 51 N. Y. 61; 10 Am. Bep. 559. In that case the injury
resulted from the vitality of the animals, and their inherent nature
and characteristics. For such injury the carrier was not liable
at common law, and the general words of release and exemption
could not operate at all, unless upon the negligence of the defend-

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