HAWKINS ET AL. v. GREAT WESTERN R. R. Co.

We discover no error in the record, and the judgment must be affirmed, with costs.

CAMPBELL and GRAVES JJ. concurred.

CHRISTIANCY J. did not sit.

Walter H. Hawkins et al. v. Great Western R. R. Co.

Common Carriers: Contracts against negligence: Lire stock. A contract for the carriage of live stock which exempts a railroad company from responsibil ity for losses and damages in loading, unloading, conveyance and otherwise," whether arising from negligence, misconduct or otherwise, does not exempt them from the necessity of furnishing saitable cars; and the exemptions must be confined to risks in the use of the proper means of transportation which every one is entitled to assume are possessed by a carrying company.

General words of exemption, when used after a designation of specific exemptions and risks, will be presumed to include only those of a similar character, unless a different intention is munifest.

Where, under such a contract, there was nothing to show that the shipper assented to the use of the cars on which his stock was shipped, with adequate means of observation as to their fitness, he was held entitled to expect that the cars used should be reasonably suitable for the business, and to recover for losses if caused by their unfitness.

Error to Wayne Circuit.

Heard April 25th. Decided April 28th.

This was an action brought against the defendant as carriers to recover damages for an alleged injury to certain horses while in transit on their road.

The plea was the general issue.

The injury resulted from a defect in the floor of the cars, by means of which the bottom dropped out, and the horses were injured.

On the trial, the defendant's counsel introduced in evidence, under objection, a shipping bill, signed by the plaintiffs, containing, among other conditions, that

"The owner of the within-mentioned animals undertakes all risk of loss, injury, damage and other contingencies in loading, unloading,

17 MICH. -E

HAWKINS ET AL. v. GREAT WESTERN R. R. Co.

conveyance and otherwise, whether arising from the negligence, default or misconduct, gross or culpable, or otherwise, on the part of the Railway Company's servants, agents or officers.

"When free passes are given to persons in charge of animals, or to their owners, or to the consignees named on the way bills, or either of them, it is only on the express condition that the railway company are not responsible for any negligence, default or misconduct, gross, culpable or otherwise, on the part of the company or their servants, or of any other person or persons whomsoever, causing, or tending to cause, the death, injury or detention of persons with such free passes, or of such animals, and that whether such passes are used in traveling by any regular passenger train, or by any other train whatever."

The defendant's counsel also introduced in evidence, under objection, a free pass delivered to plaintiffs, and signed by them, containing the substance of the foregoing condi

tions.

There was some evidence tending to show that the defendants did not examine the cars in which the said horses were placed immediately previous to their shipment.

The court charged the jury that said shipping bill and passes constituted a special contract, and that the plaintiffs were bound by the conditions on the back of said passes and shipping bill; that by the terms of said special contract the defendant was exempted from the use of ordinary care, and also from liability for gross negligence in the transportation of the stock of the plaintiffs.

The jury, under said charge, brought in a verdict for defendants.

The following, amongst other errors, was assigned:

"That the court instructed the jury that said shipping bill and passes constituted a special contract, and that the plaintiff's were bound by the conditions on back of said passes and shipping bill; that by the terms of said special contract the defendant was exempted from the use of ordinary care, and also from liability for gross negligence in the transportation of the stock of the plaintiffs."

HAWKINS ET AL. V. GREAT WESTERN R. R. Co.

Moore & Griffin, for plaintiffs in error.

The court below instructed the jury that the special contract exempted the defendant from liability for gross negligence.

The testimony shows that this negligence consisted in not providing suitable cars.

The terms of the contract are not sufficiently clear and explicit, and are not intended to cover this defect; they are "All risks of loss, injury, damage and other contingencies, in loading, unloading, conveyance and otherwise."

This contract is carefully framed, and language used with reference to the carrying of live stock.

Many of the risks attendant upon the transportation of live stock are such as do not exist as to merchandise.

The word "conveyance," we think, has reference to many of those risks which are peculiar to the transportation of live stock, and which commence after the transportation begins.

This same injury, in all probability, would have happened had the car remained stationary.

"Risk of conveyance" does not reach this injury.

Every exception of risk must be contained in the contract itself, in express terms. No implication will be made in favor of the carrier.-Angell on Cur. § 226, a.

But if it be said that the word "conveyance" is broad enough to cover all risks accruing after the loading, and that this particular injury would not have happened were it not for the kicking and movement of the animals; and that this is one of the very risks incident to the carriage of live stock, and intended to be reached by the terms of the contract, we reply,

The carrier undertook to carry live stock, and not merchandise.

There is an implied warranty that a carrier undertaking to furnish vehicles for a certain purpose will provide suitable ones.-5 East. 428; 6 How. 382; 14 Barb. 524; 29 Id.

HAWKINS ET AL. V. GREAT WESTERN R. R. Co.

132, 602; 26 Id. 641; 5 Sandf. 180; 7 Hill, 533; 4 Seld. 375; 24 N. Y. 222, 181, 1197; 25 Id. 442.

The question of permitting a common carrier to exempt himself, by special contract, from liability for gross negligence, has been presented to the highest courts of judicature of several states, and the doctrine rejected.-30 Penn: State, 242; Amer. Law Reg. Jan. '68, 172; 19 Ill. 136; 38 Id. 354; 15 La. An. 103; 4 Ohio, St. 362; 10 St. 65; 31 Me. 228; 28 N. J. 180; 4 Hurl. & Nor. 327; 2 Redf. on Rail. 82-98; 3 Pars. on Cont. 247.

Wm. Gray and L. Cochrane, for defendant in error.

The first count in the plaintiffs' declaration alleges that the defendant received the horses to be by it "safely and securely carried and conveyed," etc. This is the legal effect of the contract imposed upon the railway company, in the absence of any special agreement. The second count states that the defendant, as such "common carrier as aforesaid," i. e. "as a common carrier of goods and chattels for hire, to wit, from Paris, in the Province of Canada, to the city of Detroit," etc. had the care and custody of certain horses for a certain hire and reasonable reward. Notwithstanding this count does not allege that the property was received for the purposes of carriage, it will be presumed that such was the object. Upon this presumption the law conclusively raises a second, that the horses were to be "safely and securely" carried, unless the latter is rebutted by evidence that such was not the contract. To carry safely and securely is the gravamen of the obligation imposed upon the railroad. The special contract offered by the defendant directly negatives the positive allegations and necessary implications of the plaintiffs' declaration.-13 Q. B. 345, 352.

We submit, therefore, that it was properly introduced under the general issue.

There is no doubt special contracts may be made by common carriers with consignors, to relieve the former from

HAWKINS ET AL. V. GREAT WESTERN R. R. Co.

the responsibility which the law has imposed upon them. 6 Mich. 243, 263.

The court will assume that the defendant paid, and the plaintiffs received, a consideration for the release here claimed. 16 Mich. 79.

The form used in this case does not differ substantially from that formerly used by the English railways for the same purpose.-13 Q. B. 345, 348; 10 C. B. 453, 463; 7 Excheq. 707.

In the case before this court the sole substantial difference is that this contract is more specific than the English contracts.-4 Hurl. & Nor. 327.

Gross negligence is in many of the works spoken of as fraud. But in numerous instances it is entirely consistent with good faith.- Edw. on Bail. 71.

While we do not contend that a carrier may contract for a right to commit a fraud upon his employers, we do maintain that the latter may insure against the negligence, even gross, of the former, when unaccompanied by fraud; that consequently, before the latter can call upon the defendant to exonerate himself, he must show such a state of affairs as would raise at least a presumption of fraud actually committed, and intended to be committed.

In this case nothing of the kind appears.

CAMPBELL J.

Plaintiff shipped certain horses over the railway of the defendants, under a contract which provided that the owners took all risks of loss, injury, damage, and other contingencies "in loading, unloading, conveyance, and otherwise, whether arising from the negligence, default, or misconduct, gross or culpable, or otherwise, on the part of the railway company's servants, agents, or officers." The contract contained a further provision that, when free passes were given to persons in charge of animals, or to their owners or consignees, the company should not be responsible for any