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expense of construction would have more nearly approached the
cost of English roads, and the price of transportation would not
have been so far below Enp:lish rates as it now is. But the prac-
tical difficulties resulting from the conflict of public interests
do not change the legal principles applicable to this case, or af-
fect the plaintiff's cause of action. The knowledge which the
defendants may Le presumed to have of the fact that persons of
ordinary prudence frequently go upon level crossings in front
of moving trains, when thev would wait for the trains to pass if
they had been long employed as railway managers or trainmen, is
a knowledge of danger caused by hiirh speed, and common mis-
approlionsions and miscalculations. The defendants, presumably
aware of this customary danger and its cause, are bound to act



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60i) HuNT&Kss v. Boston and Mau^s K £. [N.&

upon their superior knowledge, and to take such precautioni ai
men of ordinary prudence would take, under the ciicumstanceSy
in their situation. In this case^ as in many otherSy it is a ques-
tion of fact whether a person of ordinary prudence^ operatiDg tk
defendants' road with their knowledge of the dangers of lerd
crossings, would guard against accidents by stationing flagmen
there, or slackening the speed of the trains. If wrong is done
in the decision of questions of fact, it ^®* cannot be legally pre-
vented or rectified by a judicial alteration of the law. It ii
probable that the plaintiff's wife and her mother saw the train,
and supposed they coidd safely cross the rails before it sniTed.
Their deafness might increase their vigilance; and it could be
properly f oimd that they shoidd have been stopped by a flagman
charged with the duty of correcting the fatal mistake into whid
persons of ordinary prudence are liable to fall at such croedngB:
Eaton V. Fitchburg R. R. Co., 129 Mass. 364.
Judgment on the verdict.

Blodgett, J., did not sit

Smith, Clark, and Bingham, JJ., concurred.

Allen and Carpenter, JJ., dissented from the dedson that
there was evidence suflScient to warrant a finding of due care on
the part of M., and expressed no opinion upon the question
whether, assuming the engineer and fireman were not in &n}t,
there was suflScient evidence of negligence on the part of the de-
fendants.



NEGLIGENCE OP PLAINTIFF— PRESUMFTION OP.-N^
gence is not presumed against a plaintifiF, bnt when hia own effidenoe
tends to create such preanmption, he mnstrebat it by safficient proof to
produce the belief in the minds of the jurv that negligence on 010 ptft
did not in fact exist: Missouri Pac. By. Go. v. Foreman, 73 Tte.Sll:
15 Am. St. Rep. 785, and note. Oontributory negligence will not be
presumed, but must be proved, and the burden of proving it resta on
the defendant! Little Bock etc. Rv. Go. v. Leverett, 48 Ark.833; 8 Ad.
8t. Rep. 2a0. Gontributorv negligence as a defense must heiffii]m>-
tively proved: Little Rock etc. Ry. Co. v. Eubanks, 48Ark.4C0rS



Am. St. Rep. 245. The burden of proving oontributorir B%li^°^'
always upon the defendant: Geor^a Pac Ry. Co. v. Davis, W Alt.SW:
25 Am. St. Rep. 47, and note; Alabama etc R. R. Go. v. Fraser, »
Ala. 45; 80 Am. St. Rep. 28.

RAILRGADS— FLAGMEN AT CROSSING — DUTY TO MAIK-
TAIN.— According to many of the dedsiona, although, as a feneni
rule, a railroad company is not bound at common law to Keep a ilsgiDtfi
at a crossing, it is nevertheless required to do so when its road isioeon-
Btructedaato make it hazardous: Extended note to Ernst v.HndMi
River R. R. Go., 100 Am. Dec. 412. This salject wiQ be found foUy du-



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JuDdi 1890.] Fosfl V. Boston and Mains K. B. 607



I in the notea to the following cases: Baaman y. Shenango els.
R. B. Co., 87 Am. Bep. 691 ; McGrath v. New York etc. B. B. Co., 17
Am, Kep. 866; Louisville etc. R. R. Co. t. Commonwealth, 96
Bep. a07; Welsch ▼. Hannibal etc* B. B. Co., 37 Am. Rep. 444.



Foss V. Boston and Mains Railroad.

[06 New Hamfshibi, 256.]

BAILRO ADS— FEEBLE PASSENGER.~A railroad paimenger In
feeble health, carried beyond the station of her destination, is not
gnilty of contribntory negligence, in attempting, with the assiatance
of the train employees, to alight from the cars at an unsuitable phice
and from a dangerously high step, without informing them of her
feeble condition. If, In such case, the employees fall to assist her
from the car without injury, they are guilty of negligence and she
may recover.

RAILROADS-DUTY TO PEBBLE PASSENGER-NOTICE TO
CONDUCTOR. NOTICE TO COMPANY.— Notice to a railroad con-
ductor of the feeble health of a passenger on his train is notice to the
company, and the failure of such passenger to repeat such notice to
another conductor who takes charge of the train is not contributory
negligence. The failure of the first conductor to repeat such notice to
his successor on the train la negligence for which the company is
lUble.

Case by a passenger in feeble health to recover for injuries
received in alighting from a railroad train after being carried
from five hundred to seven hundred feet beyond the station of
destination. Verdict for the plaintiff.

Russell & Boyer and W. L. Foster^ for the plaintifF.

Worcester & Gaf ney and J. A. Edgerly^ for the defendants.

*"^ ALLEN^ J. The motion for a nonsuit for want of evi-
dence to charge the defendants was properly denied. The plain-
tiff, without apparent fault of her own, was carried some dis-
tance — ^five hundred to seven hundred feet — ^beyond her destina-
tion to which she had a ticket, and s^as there hurriedly assisted
from the car to the ground over steps the lowest of which was
twenty-two inches above the ground. The injury she received
in jumping to the ground was aggravated by being compelled to
walk from her landing-place to the station. ^In the flustered
state of her mind, and the fear of being carried beyond her des-
tination, she did not notice the distance ^^^ of the car step from
the ground. She had a right to rely on the assistance offered by
the conductor and brakeman at such a place, and, if they failed
to assist her from the car without injury, the fault was the de-
fendants' and not hers. However this may be, the question of



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608 DuNTLEY V. Boston and Maine R. B. [N. H.

her own negligence or want of care was fairly submitted to the
jury, whose verdict, under the instructional has left her free from
fault

The case in principle is not different from Bullard ▼. Boston
etc. E. B. Co., 64 N. H. 27, 10 Am. St. Eep. 367, where the plain-
tifP was injured on leaving the train, the rear car of which, in
which she was riding, not having reached the station platfonn.
She was injured on leaving the car by steps about three feet from
the ground. The plaintiff recovered a verdict, and the court,
in the opinion, decided that '^these facts were evidence from
which a jury might find that the plaintiff exercised due care io
leaving the train at a place which she knew was a bad one for
alighting, and, further, might find that the defendants intended
the should leave at that place."

In that case the cor step was fourteen inches farther from the
ground than in tlie present case; but the plaintiff had no assist-
ance in alighting, and the distance from the station platform was
very much less. The question of the reasonable care of the pa^
ties was the same in each case. The defendants' first exception le
overruled.

The defendants requested the instruction that the plaintiff,
enfeebled as she was, should not have attempted to get off the car
at the place she did, but should have notified the attendant train
hands of her condition, that they might have set the train back
to the station, where she could have alighted on the platform in
safety; that no notice being given them of her feeble condition,
she cannot recover. Such a request was properly refused. It
left out of sight the fact that, at the time, the train had passed the
station platform a long distance, and that the step of the car from
which she must jump was too high ?or a well person to step from
safely. The request, too, leaves out of sight the flustered con-
dition of the plaintiff's mind under fear of being carried beyond
her destination, and the fact that until she struck the ground she
was not aware that the car had passed beyond the station plat-
form. The instruction which the court gave was sufficiently ex-
plicit. The jury were told that "if the place [where the plaintiff
left the car] was suitable, and the defendants fully performed the
duty they owed to the plaintiff, the defendants are not' liable for
any injury the plaintiff may have received. If the place vai
unsuitable, and the plaintiff received injury in consequence, ih%
defenrlants are liable therefor, unless the plaintiff's want of care
contributed to the injury. Was the plaintiff in fault for being



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7ane, 1890.] Fobs v. Bostoit akd Mains R. R. 800

left at that place^ or for leaving the car without objection^ or for
not saying anything about her feeble condition? Was she in-
duced to alight there by the defendants' servants? Did her want
of ordinary care contribute to her injury?*' *^^ These pertinent
instructions and inquiries made to the jury were plain and explicit^
covered the ground of the case^ contained the settled law on the
subject^ and were sufficiently favorable to the defendants. The
exception to the refusal of the defendants' request is overruled.

A special exception was made to the instruction that^ in deter-
mining the question of care exercised by the defendants and the
plaintiff^ the evidence that the plaintiff's husband informed Con-
ductor Jefferson, at Bochester, that the plaintiff was feeble and
would need assistance, and that Jefferson said he would notify
the conductor who was to take the train at Conway Junction, and
it would be all right, and that the plaintiff's husband so informed
her, is material. Knowledope communicated to Jefferson was
notice to the defendants of the plaintiff's condition, and she was
not required to notify every other conductor and trainband on the
train. A conductor who had charge of the train and the over-
sight of its passengers was the person to whom a knowledge of the
plaintiff's health and need of assistance in leaving the train should
be given, and the plaintiff had a right to rely on his assurance that
he would inform the conductor beyond. The question was one
of due and reasonable care. The plaintiff relied, and had a right
to rely, on Jefferson's giving his successor the information about
her condition. And if the conductor failed to bring her con-
dition to the notice of the conductor who followed him, his neg-
lect could not be charged upon the plaintiff. The defendants
were as much affected by Jefferson's knowledge as they would
have been by the same facts communicated to the superintendent
or one of the directors of the road in season to have made use of
them. The defendants had no reasonable ground of complaint on
account of the instructions.

Judgment on the verdict.

Clark, J., did not sit; the others concurred.



RAILBOADS-DUTY TO SICK OK INFIRM PASSENGBltS.— If
« railroad company, with notice that a person is in a sick and helpless
condition, receives him as a passenfter on one of its trains, It is answer*
able in dflmafres for a failure to exercise proper care over him whereby
h« is mnde worse: Weishtman v. Lonisville etc. Ry. Co., 70 Miss. 563;
85 Am. St. Ren. 660, and note; Groom v. Chicago etc. Ry. Co., 52 Minn*
296; 38 Am. St. ^(^x^. 557. and note. Se*^, niso. the extended note to
New Orleans etc. R. R. Co. v. Statham, 97 Am. Dec. 499.
▲m. 8r. Rip.. Vol. XL1X.-89



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610 DuMTLEY V. Boston and Maine R. IL [N. H.

DuNTLBY V. Boston and Maine Railroad,

[66 NKW HAMfSHIBB, 268.]

CARRIERS— regulation OF FREIGHT CHARGBS.~A
common carrier may prescribe just and reasonable regulations to pro-
tect himself against fraud, and fix a rate of charges for freight pro-
portionate to the magnitude of the risk he assumes.

CARRIERS— REGULATION LIMITING LIABILITY.— Common
carriers may by regulation make rates for the transportation of live
animals to depend upon their value as given by the shipper, and may
restrict his claim for damages for injury or loss to the value he pl&cei
upon his property for transportation with notice of such regulation.

Exceptions to a referee's report in favor of plaintiff.

0. E. Cochrane^ J. G. Hall^ and J. Smith, for the plaintiff.

Worcester & Gafney, for the defendants.

•«» CLARK, J. In Hart v. Pennsylvania E. R. Co., lia U. S.
831, which, like the present, was an action to recover damages
from a railroad *^ for injuries received by the plaintiff's horses
during transportation by the defendants as a common carrier, the
bill of lading, issued by the defendants and signed by the plain-
tiff, contained a stipulation that the carrier assumed a liability
to the extent of an agreed valuation, not exceeding two hundred
dollars for each horse, and the rate of freight was based upon that
condition; and it was held that, even in case of loss or damage
by the negligence of the carrier, the contract should be upheld as
a proper and lawful mode of securing a due proportion between
the amount for which the carrier may be responsible and the
freight received. In that case, as in this, the plaintiff claimed
and offered to prove that his horses were worth much more than
two hundred dollars, but it was held that his recovery must be
limited to the amount stated in the bill of lading. The basis of
the decision was, that a common carrier may prescribe just and
reasonable regulations to protect himself against fraud, and fix
a rate of charges proportionate to the magnitude of the nsk he
assumes.

The doctrine of Hart v. Pennsylvania R. R. Co., 112 U. S. 331,
is applicable to the facts in the case before us. The referees have
found that the plaintiff shipped his horse as an ordinary horse,
understanding that the railroad had a regulation limiting its lia-
bility, in case of injury, to two hundred dollars for an ordinary
horse, and if a higher valuation was given a higher rate would be
charged. Knowing that the freight charges were measured by
the valuation put upon the property, and that the rate was fixed



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June, 1890.] Dontley v, Boston and Maine R. R. 611

upon the basis that the liability assumed by the defendants wotdd
not exceed two hundred dollars in case of loss or injury, the
plaintiff^ by shipping his horse as an ordinary horse, fixed his
value for transportation purposes at two hundred dollars, and,
having elected to treat his value as two hundred dollars for the
purpose of securing a low rate of freight, he cannot insist upon a
higher valuation in case of loss or injury. In fixing the freight
charges on the assumed valuation of two hundred dollars, both
parties xmderstood that the liability assumed by the defendants
was limited to two hundred dollars. The plaintifiPs conduct was,
in effect, a declaration as to the value of his horse and an admis-
sion that the defendants' liability as carrier would not exceed two
hundred dollars. The case is as if, upon inquiry by the defend-
ants, the plaintiff had stated the value of his horse to be two
hundred dollars, the sum named in the defendants' regulation as
determining the freight charges and the liability assumed in the
transportation of a horse of ordinary value.

The rule or regulation of the defendants, of which the plain-
tiff had notice, was not designed and did not purport to relieve
the defendants from their common-law responsibility as a carrier.
The purpose was to secure information as to the value of the ani-
mals received for transportation, and compensation proportionate
to the risk incurred. As such, the regulation was a reasonable one,
and not in conflict with the general principle that a common
carrier ^^ cannot discharge himself of legal responsibility by a
general notice: Moses v. Boston etc. E. E. Co., 24 N. H. 71, 90,
91; 55 Am. Dec. 222. Such a stipulation is not prohibited on
grounds of public policy. In Hart v. Pennsylvania E. E. Co.,
112 TJ. S. 331, 340, 341, the court say: *'The limitation as to value
has no tendency to exempt from liability for negligence. It does
not induce want of care. It exacts from the carrier the measure
of care due to the value agreed on. The carrier is bound to
respond in that value for negligence. The compensation for
carriage is based on that value. The shipper is estopped from
8a3ring that the value is greater. The articles have no greater
value, for the purposes of the contract of transportation, between
the parties to that contract. The carrier must respond for neg-
ligence up to that value. It is just and reasonable that such a
contract, fairly entered into, and where there is no deceit prac-
ticed on the shipper, should be upheld. There is no violation of
public policy. On the contrary, it would be repugnant to the
soundest principles of fair dealing and of the freedom of con-



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612 DuNTLEY V. Boston and Maine R. R. [N. H.

tradings and thus in conflict with public policy, if a sliipper
should be allowed to reap the benefit of the contract if there is no
loBS, and to repudiate it in case of loss."

There is no injustice in restricting the shipper's claim for
damages to the value he places upon his property for transporta-
tion. If the plaintiff obtained the lowest rate of freight by
shipping his horse as of ordinary value, it is not unreasonable
that his recovery should be restricted to two hundred dollars,
which was the amount of the risk the parties understood the
plaintiff paid for and the defendants assumed as carrier: Magnin
V. Dinsmore, 62 N". Y. 35, 56; 20 Am. Eep. 442; Squire v. New
York Cent K. K. Co., 98 Mass. 239, 245; 93 Am. Dec. 162;
Graves v. Lake Shore etc. B. E. Co., 137 Mass. 33; 50 Am. Bep-
282; Hill v. Boston etc. B. B. Co., 144 Mass. 284.

The motion to set aside the award on the ground of disquali-
fication of the referees, and the request for a further hearing on
that motion, were questions of fact for the trial term, not ordi-
narily revisable at the law term, and no error of law appears in
the denial of the motions. As greater damages were awarded
the plaintiff than he was legally entitled to recover, he suffered
no injustice from the award: Holman v. Manning, 65 N. H. 92;
Sanford Mfg. Co. v. Wiggin, 14 K H. 441, 461; 40 Am. Dec
198.

Exceptions overruled.

Blodgett, J., did not sit; the others concurred.

In Durgin v. American Express Co.» M N. H. 277, the aeiion was
brought to recover the value of a box of merchandise which the defend*
ants, as common carriers, received from the i^laintiff and failed to de-
liver to the consignee. The shipping receipt given by the carrier upon
receiving the goods contained a stipulation that "it la farther agreed
that this company is not to be held liable or responsible for any loss of,
or damage to, said property, or anv part thereof, from any cause what-
ever, unless in every case the said loss or damage be proved to have
occurred from the fraud or gross negligence of said company or their
servants; nor, in any event, shall this company be hela liable or re-
sponsible, nor shall anv demand be made upon them beyond the snm
of fifty dollars, at which sum said property is hereby valued, unless the
just and true value thereof is stated herein." The value of the mer-
chandise received was not stated, nor was any inquiry made, nor did
defendants or their agents know its value. The sum to be chained for
carrying the box was not mentioned, and the express charges were
charged to the consignee, to be paid upon delivery. The supreme court
held that the carrier was not liable for the true value of the goods lost,
under the rule that common carriers may limit their common-law lia-
bility by express and reasonable contract or stipulation against risks
not arising from their own negligence, as in the present case, where the
goods were lost or stolen without the fault of the carrier: Merrill v.
American Express Co., 62 N. H. 514; Rand v. Merchants' etc, Co., 59



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June, 1890.] Duntlst v. Boston and Mains R. B. 61S

9. H. 868; Barter v. Wheeler, 49 N. H. 0-90; 6 Am. Bep« 484; Moaea
T. Boeton etc. R. B.. 24 N. H. 71 ; 55 Am. Dec. 222.

In conformity with this view, "conditions and stipnlationa designed
to aeonre to carriers information aa to the character and yalne of articles
delivered to them, and to limit their reaponaibilitj; to the araonnt and
extent of the riak apparently aaaamed by the carrier and paid for by
the parchaaer, are upheld aa Joat and reaaonable " t Dnntley t. Boeton
etc. JEt. B., 66 N. fl. 263; ante, p. 610; Edwards on Bailmenta, 2a ed.,
sees. 567-569; Hart v. Penn B. R. Co.. 112 U. S. 331; Gravea v. Lake
Shore etc. B. B. Co., 137 Mass. 33; 50 Am. Bep. 282; Little v. Bailroad
Co., 66 Me. 239; Magnin v. Dinsmore, 62 N. T. 85; 20 Am. Bep. 442;
8t. Lonisetc. By. Co. r. Weaklev, 50 Ark. 897; 7 Am. St. Bep. 104.
"The stipnlation aa to an agreed yalnation inserted in the shipping
receipt taken by the plaintiff, waa designed to determine the extent
of the defendant's liability, in case of loaa of the gooda^ and the plain-
tiff ao understood it, and having agreed upon a valuation for the pui>
pose of flxins the expreaa chargeaylie cannot inaiat that the gooda are
of greater value for the purpose of increaaing hia claim for damages for
the loss. Nor is it material whether the loss arose from the negligence
of the defendants, or from aome other cauae. The defendanta agreed to
reapond in a aum not exceeding fifty dollara. In caae of loaa, and, for the
purposes of the contract of transportation between the (mrties to the
contract, the goods can have no greater value: Hart v. Penn B. B. Co.,
112 U. S. 831-341; Graves v. Lake Shore etc. B. B. Co., 137 Mass. 33;
50 Am. Bep. 282; Hill v. Bailroad Co., 144 Mass. 284. If the question
la raiaed in thia caae, it aeeroa to be aettled by the great weight of
authority that a common carrier cannot stipulate for exemption from
responsibility for the negligence of himself or his servants on grounds of
public policy, even by express contract: Bailroad Co. v. Lockwood, 17
Wall. 857; Liverpool etc. Steam Co. v. Phoenix Ins. Co., 129 U. S. 397:
Bank of Kentucky v. Adams Express Co., 93 U. 8. 174; Willis v. Bail-
way Co., 62 Me. 488; Mann v. Birchard, 40 Yt. 826; 94 Am. Dec. 898;
Squire v. New York etc. B. B. Co., 98 Mass. 239; 93 Am. Dec. 162;
Louisville etc. B. B. Co. v. Oden, 80 Ala. 88; Wallingford v. Bailroad
Co., 26 8. C. 258; Grogan v. Adams Express Co., 114 Pa. Si. 628; 60
Am. Bep. 860; Edwards on Bailmants, sec. 563.

CABBIEBS — FBEIGHT — BEGULATION OP CHABGES.— The
agreement of the parties usually fixes the rate of freight to be charged,
and, if not ao fixed, the carrier may recover for the transportation on a
quantum meruit, and he can recover only a reasonable aum : Extended
note to Crawford v. Williama, 60 Am. Dec. 149.

CABBIEB8-VALUATI0N OF ABTICLES— LIMITING LIABIL-
ITY FOB NEGLIGENCE TO THAT AMOUNT.— A contract apeci-
fying that the value of property does not exceed a aum named, and
that in the event of ita loss through the negligence of the carrier, the
liability should be limited to auch sum, if fairly and honestly made aa
a basis of the carrier's charges and responsibility, is a just and reason-
able mode of securing the due proportion between the amount for
which the carrier msLj be reaponsible and the freight he receivea, and
of protectine him against extravagant and fanciful valuations, and la
therefore valid: Alair v. Northern Pac. B. B. Co., 53 Minn. 160; 89
Am. St. Bep. 588, and note. See, alao, the extended note to Chicago
etc. By. Oo. v. Chapman, 23 Am. St. Bep. 598.



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614 HiCKBY V. DOLB. [N. H,

HioKBY V. Dole.

[M NEW HXMnHIRI, 881]

8TATUTB OF FRAUDS-CONTRACT BY LBTTBR8.— A con*
tract binding under the statute of frauds, tliougli signed by only one
of tlie parties tliereto, may be gatliered from letters between tliem
relating to the subject matter, and so connected with each other as
to fairly constitute one paper.

SPECIFIC PERFORMANCE-MUTUALITY OF REMBDY.-
Plaintiff's right to specific performance does not depend upon the
defendant's right to that remedy.

SPECIFIC PERFORMANCE— PARTIES.— The admUilstrator and
heirs of one of the parties to a contract for the conveyance of land



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