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the wire, raised up his front foot, and got MINNESOTA SUPREME COURT.
caught in the wire, and was completely
ruined. When I started over there, I saw

NORTHWESTERN MARBLE & TILE that they pushed the fence over and

COMPANY, Appt., against my colt, and that mine, in fighting


WILLIAMS back, got onto the wires."

From the fact that upon the cross-exam- (128 Minn. 514, 151 N. W. 419.) ination of Arp it appeared that his horse caught its foot in the top wire of the fence, Appeal waiver of new trial. this court assumed that the horse was try. 1. If, after verdict, the unsuccessful paring to jump the fence, and that such at- ty moves for judgment notwithstanding the tempt was the proximate cause of the in- verdict, but does not move in the alter. jury. Even if the court was right in that native for a new trial, he cannot on appeal

be awarded a new trial. By resting solely assumption, it is clear that such attempt upon his motion for judgment, he waives was the natural and probable result of the all errors which would be ground only for presence of the other horses across the fence a new trial. and of their actions. Their presence and Carrier injury to freight liability. activities there were the dominant cause of • 2. A common carrier is at common law the action of Arp's horse, and therefore of the an insurer of the goods shipped, and is reinjury. In that case the court said: “In sponsible for all losses except those arising the case at bar the injury resulting to de- from certain excepted causes. One excepted fendant's colt could not have been antici- The rules applicable to contributory negli

cause is improper packing by the shipper. pated by the plaintiff in permitting his colts to remain in the highway adjoining rier must, to relieve himself from liability,

gence do not apply to such a case. The cardefendant's land.”

show that the fault of the shipper was the We do not think that statement correctly sole cause of the loss. expresses the rule. We think the rule is not Same improper packing refusal. whether the party could have anticipated 3. If improper packing is apparent to the particular accident that happened. In the carrier or his servants, then the carrier the note to that case in 130 Am. St. Rep. on

may refuse to receive the shipment. If he page 747, the author concisely states this does receive the shipment, he assumes to rule, which is fully sustained by the author- carry the goods as they are, and the full

common-law liability as carrier attaches. ities cited : “The proximate cause of an

Same assumption of risk. injury is that which in a natural and

4. Although the carrier has knowledge of continuous sequence, unbroken by any new

the defective packing, yet, if it is not apindependent cause, produces the injury, parent to the ordinary observation of the without which the injury would not have carrier or his servants that the goods canoccurred. It is not necessary to show that not be safely carried in the condition in the wrongdoer ought to have anticipated which they are presented, the carrier should the particular injury which did result; it not be held to take the chances of injury is sufficient to show that he ought to have

from improper packing. On this point the

evidence in this case presents a question anticipated that some injury was likely to for the jury. result as the reasonable and natural consequence of his negligence." See also 29 Cyc.

(March 5, 1915.) 499.

It seems to us that the entanglement of Headnotes by HALLAM, J. the Arp horse in the fence, and the entanglement of the present plaintiff's horse in the Note. - Liability of carrier in respect

of property which it accepts impropfence, were not the result of “any new, in

erly packed or crated. dependent cause," but that each was the result of the presence and activities of the

For the earlier cases upon this question,

see note to Atlantic Coast Line R. Co. v.

We other fellow's horses across the fence.

Rice, 29 L.R.A. (N.S.) 1214. are of the opinion that in allowing his

As to the effect of a shipper's negligence horses to get upon the plaintiff's land the in loading a car, or as to the condition of defendant in the case at bar should have the car, upon the carrier's common-law liaanticipated, and must be held to have antici- bility, see notes to Duncan v. Great Northpated, that some injury to his or plaintiff's ern R. Co. 19 L.R.A. (N.S.) 952, and Illinois horses, or both, was likely to happen, and C. R. Co. v. Rogers, L.R.A.1915C, 1220. for the act which did happen because of the goods which is occasioned by reason of the trespass of his animals, it reing a natural goods being shipped in improper contain

ers or packages, not because of any theory and reasonable result thereof.

of contributory negligence, but because such The judgment and order appealed from facts form exceptions which abrogate the are reversed, and a new trial granted. common-law liability of the carrier. Revilla


PPEAL by plaintiff from a judgment of I would be proper to consider these assign

the District Court for Rice County, ments of error; but they are quite imdenying a motion for judgment notwith-material on this appeal. A party against standing a verdict for defendant in an ac- whom a verdict has been returned may move tion brought to recover damages for injuries in the alternative for a new trial or for to certain marble slabs while being trans-judgment notwithstanding the verdict. Gen. ferred by defendant from a railway station Stat. 1913, $ 7998. When he moves only to destination. Affirmed.

for judgment, and rests upon that motion The facts are stated in the opinion. alone, he cannot on appeal be awarded a Mr. Walter W. Todd for appellant. new trial. He has waived all errors which Mr. James P. McMahon for respondent. would be ground only for a new trial. Bragg

v. Chicago, M. & St. P. R. Co. 81 Minn. 130, Hallam, J., delivered the opinion of the 83 N. W. 511; Krumdick v. Chicago & N. court:

W. R. Co. 90 Minn. 260, 95 N. W. 1122, 14 Plaintiff, a dealer in marble in Minne- Am. Neg. Rep. 589; Sallden v. Little Falls, apolis, shipped a number of marble slabs by 102 Minn. 358, 13 L.R.A.(N.S.) 790, 120 rail to the state school for the feeble- | Am. St. Rep. 635, 113 N. W. 884; Helmer minded at Faribault. Defendant is in the v. Shevlin-Mathieu Lumber Co. Minn. transfer business at Faribault. He was en 151 N. W. 421. Errors in the admission of gaged to haul the marble from the railway evidence or in the charge to the jury are station at Faribault to its destination. The of this sort. They present no ground for marble was packed in crates, and on the judgment notwithstanding the verdict. Final way some of the crates fell from the wagon judgment cannot be given to the defeated and several slabs were broken. Plaintiff party because the cause was erroneously sued for damages. The jury found for de tried. Such party may, if he asks for it, fendant. Plaintiff moved for judgment not be entitled to a new trial on this ground, withstanding the verdict, but did not ask but never to final judgment. The question for a new trial, and the court denied the before us is, not whether the case was propmotion. This appeal involves only the ques.erly tried, but whether there is any comtion of the correctness of this ruling. petent evidence reasonably tending to sus

1. Plaintiff assigns as error certain rul. tain the verdict. If so, the verdict must be ings of the court in the admission of evi sustained. In determining that question, dence and in the charge to the jury. If every intendment will be indulged in favor plaintiff were asking for a new trial, it I of the verdict, and judgment will only be Fish Products Co. v. American-Hawaiian it was held that the shipper could not reS. S. Co. 77 Wash. 49, 137 Pac. 337.

Bradley v. Lake Shore & M. S. R. In Louisville, H. & St. L. R. Co. v. South Co. 145 App. Div. 312, 129 N. Y. Supp. 1045. ern Seating & Cabinet Co. 157 Ky. 772, In Deake v. United States Exp. Co. 172 164 S. W. 90, an action for injury to opera Mich. 451, 138 N. W. 196, which was an chairs shipped over defendant's road, packed action for the loss of a bull calf shipped in crates, the court said that if goods are in a crate by plaintiff, due to the crate insufficiently packed, and this fact is not being too large, so that the calf was enknown to the carrier, nor discoverable by abled to turn around partially and break the exercise of ordinary care, it is not liable the crate when he became excited and for loss or injury due to such insufficient vicious during the trip, it was held that packing, if itself free from negligence. defendant was not negligent in accepting the

The liability of a carrier as an insurer calf so crated, where there was no defect of goods does not extend to loss or damage in the crate other than its size, and plainarising from the negligence of the shipper, tiff's testimony showed that, although he or from vices or defects inherent in the saw the calf get excited and try to turn nature of the goods, and where, in an ac- around in the crate at the point of shiption for the loss of a puncheon of molasses ment, he did not think it was necessary to that burst during transit, there was evi- take any further precautions. dence on the part of the defendant tending In E. C. Fuller Co. v. Pennsylvania R. to establish such conditions, defendant was Co. 61. Misc. 599, 113 N, Y. Supp. 1001, entitled to have them considered by the which was an action for damage to majury under proper instructions. Currie v. chinery shipped over defendant's railrond, Seaboard Air Line R. Co. 156 N. C. 432, the court says it was essential to plaintiff's 72 S. E. 493.

recovery to prove that the goods when deWhere a shipper did not comply with a livered by plaintiff were in good condition regulation of the carrier that nitric acid and properly packed for transportation, car boys would not be accepted for trans- but it does not appear clearly from the portation unless they were packed in non- facts in the case whether the injury to the combustible dunn and did not give no- machinery was due to the way in which it tice to the carrier of the nature of the was packed or in the way in which it was acid, and the shipment was destroyed by loaded on the car by plaintiff's employees. combustion due to the leaking of the acid,

R. L. S.


granted when the evidence is conclusive circumstances impossible to be unraveled.” against the verdict. Cruikshank v. St. Paul Arthur v. St. Paul & D. R. Co. 38 Minn. F. & M. Ins. Co. 75 Minn. 266, 77 N. W. 95, 100, 35 N. W. 721. It would be a dis958; Fohl v. Chicago & N. W. R. Co. 84 tinct extension of the doctrine of contribuMinn. 314, 87 N. W. 919; Marengo v. Great tory negligence to apply it to a case of this Northern R. Co. 84 Minn. 397, 87 Am. St. kind, and an extension which we believe to Rep. 369, 87 N. W. 1117; Fischer v. Sperl, be unwarranted. On proof of the contract 94 Minn. 421, 103 N. W. 502; Stebbins v. of carriage and of loss or damage, liability Martin, 121 Minn. 154, 140 N. W. 1029. is prima facie established. To relieve him

2. We address ourselves, therefore, to this self from liability, the carrier must prove question of the sufficiency of the evidence that the loss or damage arose solely from to sustain the verdict. Defendant was ad- one or more of the excepted causes, and it mittedly a common carrier of goods. A com- avails him not to show that the shipper mon carrier of goods in general insures the was negligent, if the loss or damage would safe transportation of goods committed to not have resulted except for the concurring him for that purpose, and he is responsible fault of the carrier. The proof must bring for all damage to the same while in transit, the case "entirely and perfectly within the unless such damage is occasioned by certain exception.” This view is ustained by the excepted causes. These excepted causes are weight of authority. McCarthy v. Louisact of God, act of public enemy, the inherent ville & N. R. Co. 102 Ala. 193, 48 Am. St. quality or “proper vice” of the articles them. Rep. 29, 14 So. 370; Hutchinson, Carr. § selves, or some act or omission of the ship-333; 1 Moore, Carr. 559; Elliott, Railroads, per or owner. Christenson v. American Exp. § 1492. Co. 15 Minn. 270, Gil. 208, 2 Am. Rep. 122; 3. It is admitted that defendant discov. Goodman v. Oregon & Nav. Co. 22 Or. 14, ered that the condition of the crating was 28 Pac. 894.

defective at the time the marble was loaded Defendant contends that this case comes on his wagon. It is claimed he thereby aswithin the last exception; that is, the consumed all the responsibility of carrying it tention is that the marble slabs were not in its defective condition. There is some properly packed or crated by the shipper, authority for the proposition that the full that when they were transferred to wagons duty of the carrier is simply to carry goods they were loaded in the proper and prac- in the condition offered, though the defect ticable way, and were braced in the usual in loading or packing is apparent, and that and proper way by means of boards running if in such case injury results from such from the top of the crates to the bottom of defective loading or packing the carrier is the wagon bed, but that they fell by reason relieved. Ross v. Troy & B. R. Co. 49 Vt. of the fact that the crating was worm- 364, 24 Am. Rep. 144. See Union Exp. Co. eaten, dozy, and decayed, so that it would v. Graham, 26 Ohio St. 595. The better and not properly hold the nails driven into it the more general rule seems to be that, if for that purpose.

goods presented for carriage are not propThe general rule is that, where the ship- erly packed, and that fact is apparent to per packs articles for shipment, he cannot the carrier or his servants upon ordinary obrecover from the carrier for injuries due to servation, then the carrier may refuse to improper packing. Hutchinson Carr. § 233; receive the goods in that condition; but if Shriver v. Sioux City & St. P. R. Co. 24 he does see fit to receive them he assumes Minn. 506, 31 Am. Rep. 353. Some author to carry them as they are, and his full ities apply here the rules of contributory common-law liability as carrier attaches to negligence, and hold that if the bad packing the contract of carriage. McCarthy v. Louis. contributes in any measure to the loss or ville & N. R. Co. supra; Elgin, J. & E. R. injury the carrier is not liable. 5 Thomp. Co. v. Bates Mach. Co. 98 Ill. App. 311; Neg. § 6465. See Reed v. Philadelphia, W. Elgin, J. & E. R. Co. v, Bates Mach. Co. & B. R. Co. 3 Houst. (Del.) 176, 212; Ross 200 Ill. 636, 93 Am. St. Rep. 218, 66 N. E. v. Troy & B. R. Co. 49 Vt. 364, 24 Am. Rep. 326; The David & Caroline, 5 Blatchf. 266, 144. It appears to us that the rules of con- Fed. Cas. No. 3,593; Klauber v. American tributory negligence have no application to Exp. Co. 21 Wis. 21, 91 Am. Dec. 452; Atsuch a case. Contributory negligence of lantic Coast Line R. Co. v. Rice, 169 Ala. plaintiff is a defense only in cases where the 265, 29 L.R.A. (N.S.) 1214, 52 So. 918, Ann. action is founded on negligence of defendant. Cas. 1912B, 389; Hannibal & St. J. R. Co. Here the action is not founded on negli- v. Swift, 12 Wall. 262, 20 L. ed. 423; 1 gence of the carrier at all. The carrier's Moore, Carr. 559. common-law liability is founded, not on 4. It cannot be said, however, that negligence, but “on broad principles of pub- the carrier must, at his peril, know that the lic policy and convenience, and was intro- goods are not in fact safely packed. The duced to prevent the necessity of going into'shipper usually knows better than the car.,

his servants that the goods cannot be safely EXCEPTIONS by plaintiff to rulings of


rier the manner in which the goods have / water into a cellar on one side of the street been packed and the manner in which they from a pond on the opposite side, because should be packed, and even though the car

of the disturbance of the earth by the blasts. rier may have knowledge of some defect in the packing, still if it is not apparent to

(April 1, 1915.) the ordinary observation of the carrier or

the Superior Court for Middlesex Councarried in the condition in which they are

ty made during the trial of an action presented, the carrier should not be held to brought to recover damages for alleged neg. take the chances of injury from improper ligent injury to plaintiff's house by water, packing. See Jaggard, Torts, 1064; Mc- which resulted in a verdict for defendant. Carthy v. Louisville & N. R. Co. supra. It

Judgment for defendant. is right here that we think the evidence in this case presents a question of fact for Statement by De Courcy, J.: the jury to determine whether it was mani- The plaintiff's house was on the easterly fest to the defendant that the marble could side of Maple street, and about 5 feet from not be carried with safety in the manner the street line. On the opposite side of the in which it was crated.

street, and about 200 feet in a northwestThe motion for judgment was therefore erly direction from this house, was a natproperly denied, and the judgment is af- ural depression of the ground. Here the firmed.

surface water from the surrounding terri

tory collected at certain times of the year Holt, J., took no part.

and formed a pool or pond that was about 100 feet long, 30 feet wide and 2 feet deep. The bottom of the pond was always moist

and muddy, and never was cultivated. All MASSACHUSETTS SUPREME JUDIthe water that did not overflow into the CIAL COURT.

gutter on the westerly side of Maple street HOWARD D. MacGINNIS, Otherwise

remained in the pond until it either evapKnown as Howard D. McGennies,

orated or seeped into the ground, joining

the ground water. MARLBOROUGH-HUDSON GAS COM- The defendant, under a license duly issued PANY.

by the city, opened a treneh 31 feet deep

the whole length of Maple street, and about (220 Mass. 575, 108 N. E. 364.) 10 feet from the easterly line of the street,

for the purpose of laying a line of gas Highway blasting trench flooding

pipe. In connection with this work the concellar liability. One blasting out a trench under mu

tractor employed by the defendant blasted a nicipal authority in a public street in which ) ledge which extended from a few feet north to lay a gas pipe is not, in the absence of of the plaintiff's house in a southwesterly negligence, liable in tort for the flow of direction across the street. When the frost Note. Liability for causing discharge Lowell, 8 Allen, 127, 85 Am. Dec. 690, hold

of percolating or underground water ing that no action lies against a city for into another's premises,

failure to keep a public sewer and cesspool

in repair, whereby waste water accumulates There are cases upon the border and flows into the cellar of a neighboring line of the subject suggested by the forego- house which is not connected by a drain ing title that are not included herein, for with the sewer, and Kennison v. Beverly, the reason that they are treated in notes 146 Mass. 467, 16 N. E. 278, which, in acupon other subjects to which they are dis- cordance with the above ruling, holds a town tinctly related.

not liable for injury to property owners by Generally, as to correlative rights in the percolation of waters from its catch percolating water, see notes in 64 L.R.A. basins or gutters, are more fully discussed 236; 17 L.R.A. (N.S.) 650; 23 L.R.A. (N.S.) on pages 697, 698, and 702 of the note to 331; 25 L.R.A.(N.S.) 465; 37 L.R.A. (N.S.) Georgetown v. Com. 61 L.R.A., which treats 193; and L.R.A. 1915A, 369.

generally of the duty and liability of a muGenerally, as to underground pollution nicipality with respect to drainage. of water, see note to Gilmore v. Royal Salt As to liability of municipal corporation Co. 34 L.R.A. (N.S.) 48.

for damage to abutting property by water The notes to Brennan Constr. Co. v. Cum- percolating through soil of highway by berland, 15 L.R.A.(N.S.) 541, and Weaver reason of defect therein, see note to SalzMercantile Co. v. Thurmond, 33 L.R.A. man v. New Haven, 22 L.R.A.(N.S.) 333. (N.S.) 1061, treat of the liability for es- As to liability for damages to neighbor. ca pe of water stored on premises.

ing gas or oil well by percolation of water, The cases cited in MACGINNIS V. MARL- see note to Atkinson v. Virginia Oil & Gas BOROUGH-HUDSON GAS Co., i. e., Barry v. I Co. 48 L.R.A. (N.S.) 168.



in the ground began to thaw in the last | by this court upon a stipulation of the days of March, 1913, which was about two parties that, if the ordering of the verdict months after the gas pipe was laid, and was wrong, judgment should be entered for soon after the contractor had used a steam the plaintiff in the sum of $612.50 with roller on the surface, water in considerable costs; otherwise judgment should be entered quantities began to percolate into the plain on the verdict. tiff's cellar through and under the wall. The city pumped it out daily for twenty-six Mr. J. J. Shaughnessy, for plaintiff: days, during which time the water in the The license from the city of Marlborough pond gradually receded. The jury specially would not give the defendant any right to found that the plaintiff's cellar was flooded do anything in the street that would cause because the ledge was blown out in the a special damage to the plaintiff's property, trench near the plaintiff's house; and also or an additional servitude which was not found that the work on the trench was not included in the laying out of the highway. done negligently. Upon the return of the Lentell v. Boston & W. Street R. Co. 202 answers of the jury to the special questions, Mass. 115, 88 N. E. 765; Daley v. Waterthe judge ordered a verdict for the defend town, 192 Mass. 116, 78 N. E. 143; Baker ant and reported the case for determination v. Boston Elev. R. Co. 183 Mass. 178, 66 N.

As to liability of railroad for conducting, is the result of the neglect of the defendant surface water through its embankments and to perform its duty." onto the property of an adjoining owner, Generally, as to employer's liability for see note to Parks v. Southern R. Co. 12 injury from flooding of lands through negliL.R.A. (N.S.) 680.

gent drainage operations of independent There does not seem to be any case on all contractor, see note to Jacobs v. Fuller & fours with MACGINNIS v. MARLBOROUGH- H. Co. 65 L.R.A. 853. HUDSON Gas Co., where the flooding was A lot owner who unlawfully allows water due to blasting.

to remain in an excavation on his lot is Where, however, independent contractors i liable for damages resulting from water excavated up to a neighbor's wall, and were percolating through the soil and injuring permitted by the landowner employing them the foundation walls of his neighbor's house. to place bricks in the street gutter provided Quinn v. Chicago, B. & Q. R. Co. 63 Iowa, they did not obstruct it, it was held in 510, 19 N. W. 336. The court stated that Bohrer v. Dienhart Harness Co. Ind. the question as to whether the defendant App. —, 45 N. E. 668, that the landowner became guilty of a nuisance, as alleged in was liable where the material was so placed the petition, should have been submitted to as to obstruct the gutter, whereby the water the jury, and an instruction given that in percolated into the neighbor's cellar and case they so found, it was proper for them caused his wall to fall; and the landowner to allow plaintiff for such injury as her was liable although the wall was weak and premises sustained from the percolation of easily disturbed, and he did not foresee the water from the excavation after the same

sult which followed the obstruction of became and while it remained a nuisance. the gutter.

The court further observed that on prinSo, one employing a contractor to con- ciple it would seem that the plaintiff ought struct a drain from his cellar to a common not to recover for such damages, if they sewer is liable where the work is so neg. resulted from the lawful and reasonable use ligently done as to cause tide water to flow by the defendant of its own lot. into the cellar of an adjoining owner. Stur- A railroad company which, in the construcges v. Theological Edu. Soc. 130 Mass. tion of their railroad, opens a supply of 414, 39 Am. Rep. 463. "In the case underground water, and to prevent inundaat bar, the defendant had the right to tion, discharges it through an artificial make opening through the barrier channel upon plaintiff's land, may be held for the purpose of laying a drain, but it liable therefor in an action of tort, unless was its duty to close it securely so that the the discharge of the water was reasonably cellars should be protected from the tide. necessary and proper in the course of conHaving employed an independent contractor, structing, securing, or maintaining its road; it is not responsible for his negligent acts and whether or not it was necessary was a while doing the work, because in respect to question for the jury. Curtis v. Eastern such acts he is not its servant; but if the R. Co. 14 Allen, 55. work after it was done created a nuisance, The city was held liable in Wilson v and caused injury to the plaintiff, it is re- New Bedford, 108 Mass. 261, 11 Am. Rep. sponsible. The jury would have been au- 352, for flooding the cellars of adjacent landthorized in finding that the cause of the owners by percolating water as a plaintiff's injury was the failure of the quence of the city raising its dam and reserdefendant to make the barrier tight after voir so as to cause an artificial pressure of laying the drain. It was its duty to do the water through the soil. this, and it cannot shield itself from re- And in Ball v. Nye, 99 Mass. 582, 97 sponsibility by showing that it employed | Am. Dec. 56, it was held actionable to cause a contractor to do the work, who was filthy water to percolate from the defendnegligent. The mischief to the plaintiff 'ant's vault through his own soil and then



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