# Railway Company v. McCarthy

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
United States Supreme Court
96 U.S. 258
Railway Company v. McCarthy
ERROR to the Circuit Court of the United States for the Eastern District of Missouri.
This is an action by John McCarthy against the Ohio and Mississippi Railway Company, to recover damages alleged to have been sustained by him in consequence of negligence, carelessness, and delay on the part of the defendant in the execution of the following contract of affreightment:--
'This agreement, made this twenty-third day of September, A.D. 1873, between the Ohio and Mississippi Railway Company, party of the first part, and John McCarthy, party of the second part, witnesseth:--
'That the party of first part will forward to the party of the second part the following freight: to wit, sixteen cars, more or less, from E. St. Louis to Philadelphia, at the rate of $130 per car, which is a reduced rate, made expressly in consideration of this agreement; in consideration of which the party of the second part agrees to take care of said freight while on the trip, at his or their own risk and expense; and that the party of the first part shall not be responsible for any loss, damage, or injury which may happen to said freight in loading, forwarding, or unloading, by suffocation or other injury caused by overloading cars, by escapes from any cause whatever, by any accident in operating the road, or delay caused by storm, fire, failure of machinery or cars, or obstruction of track from any cause, or by fire from any cause whatever, or by any other cause except gross negligence; and that said party of the first part and such connecting lines shall be deemed merely forwarders and not common carriers, and only liable for such loss, damage, injury, or destruction of freight as may be caused by gross negligence only, and not otherwise.
'Witness our hands and seals in duplicate.
'OHIO & MISSISSIPPI RAILROAD COMPANY. [SEAL.]
'By H. COPE, Agent.
'JOHN McCARTHY.' [SEAL.]
The facts in the case, as exhibited by the bill of exceptions, are set forth in the opinion of the court. They are, therefore, omitted here.
Upon the close of the testimony, the defendant requested the court to charge the jury—
1. That the plaintiff cannot recover damages for such loss, damage, or injury as was sustained by his cattle by loading, forwarding, or unloading; by suffocation or other injury caused by overloading cars; by escapes from any cause whatever; by any accident in operating the road, or delay caused by failure of machinery or cars, or obstruction of track from any cause except gross negligence; or from any cause not occasioned by gross negligence on the part of the Ohio and Mississippi Railroad Company, or the Marietta and Cincinnati Railroad Company, or the Baltimore and Ohio Railroad Company.
2. That under the contract the plaintiff can only recover for such injuries or damages as the cattle sustained before they passed into the possession of the Marietta and Cincinnati Railroad Company.
3. That the plaintiff cannot recover for such injuries as his stock sustained after they passed into the possession of the Baltimore and Ohio Railroad Company at Parkersburg.
4. That it was not the duty of the defendant, or its connecting line, the Baltimore and Ohio Railroad Company, to start out from Parkersburg on Sunday with the plaintiff's cattle, and that the plaintiff cannot recover damages for failure to do so.
5. That the jury must find for the defendant, unless they shall believe from the evidence that the plaintiff was the sole owner of the cattle in controversy; and that if they shall believe from the evidence that Hensley was a part-owner of the cattle, or in the proceeds thereof, that they must find for the defendant.
6. That the plaintiff cannot recover for such injuries as the cattle sustained through the negligence of the defendant, or of the other railroad companies operating the connecting lines, provided that the negligence of the plaintiff, or his employees or agents, contributed thereto.
7. That if the jury shall find from the evidence that the cattle in controversy had been confined in the defendant's cars for a longer period than twenty-eight consecutive hours upon their arrival at Cincinnati, it was the duty of the defendant to unload them, for rest, water, and feeding; and the defendant cannot be made liable for that detention.
8. That if injuries were sustained in consequence of causes specified and excepted in the contract of shipment made at East St. Louis, then the burden of proof is upon the plaintiff to show that such injuries were occasioned by the negligence of the defendant.
The court gave the instructions embraced by the sixth, seventh, and eighth requests, but refused all the rest. To which refusal the defendant excepted.
The court thereupon, sua sponte, charged as follows:--
'The contract between the plaintiff and the defendant contemplates that the owner, through his own agents, should have the care and custody of the cattle throughout the entire route, that is, the loading and unloading of them at the necessary intervals of rest, food, and water,-seeing that they were properly loaded and unloaded, and properly cared for.
'The defendant bound itself to transport safely, if it could be so done through the exercise of ordinary care and diligence on its part.
'Ordinarily, a common carrier,-that is, a railroad,-in the absence of a special contract of this kind, is held as an insurer. In other words, nothing that could be prevented by prudence or foresight is he excused from having done; and he must transport the cattle to their destination, unless something beyond his power and control prevents it. But that is not this contract. The parties to this suit presented a special contract for the transportation of the cattle in question; and it is for the jury to determine from the evidence whether the cattle were injured, or the plaintiff sustained any damages, in consequence of the gross neglect of the defendant or of the connecting railroads. The defendant was bound to exercise ordinary care and diligence in operating the railroad, so as to prevent injury to the cattle, arising from delays or otherwise.
By the terms of the contract, the care of the cattle devolved on plaintiff and his agents, and not on the defendants. For any injury to the cattle caused by the manner of loading or unloading the same, or by the nature of their habits, not caused by the negligence of the defendant in operating the railroad and cars, the plaintiff cannot recover. That is, if those cattle, from their very nature, among themselves hurt themselves, independent of what the railroad was doing, externally to the cars, the plaintiff cannot recover for that.
'The defendant contends that at Parkersburg the plaintiff, instead of sending forward the cattle, made a new and independent contract with the Baltimore and Ohio Railroad Company; that for the transportation from Parkersburg to Baltimore the plaintiff made an entirely new contract, and did not go forward under the old contract; that he entered into a new contract with other parties, and under that contract he will have to look to the other parties for redress. But, on the other hand, the plaintiff contends that the Baltimore and Ohio Railroad Company refused to permit the cattle to go forward unless the alleged new contract was signed. If the alleged contract was signed by the plaintiff's agent as the sole means whereby the cattle could go forward, as the original contract with defendant contemplated, then the signing of that new paper at Parkersburg did not release or discharge the defendant from its obligations to send forward such cattle, as originally agreed, without unreasonable delay.
'The original contract was made upon the part of the Ohio and Mississippi Railroad to transport to Philadelphia, for a certain price per car, sixteen car-loads of cattle, the privilege being given to the plaintiff to sell as he pleased at Cincinnati or at Baltimore. Now, the Ohio and Mississippi Railroad took upon itself the sending of the cattle beyond its terminus at Cincinnati, and took the freight for the whole distance, and was bound to see that the cattle were carried the whole distance. It made the agreement, and must see it executed.
'Consequently, if when under that agreement those cars reached Parkersburg, this intermediate road, which was the agent, the Baltimore and Ohio Road, refused to take the cattle forward despite the agreement with the Ohio and Mississippi Railroad, unless the plaintiff would sign a paper whereby he would exonerate it from any thing that might happen; if, then, the plaintiff signed, or his agent signed, the paper under those circumstances, as the only means of getting those cattle forward, that defence avails nothing.
'The transportation of cattle for long distances has caused, for it protection, recent legislation by Congress. That legislation requires under a penalty, that cattle transported over railroads shall, in the absence of unavoidable delays by storm or accident, have a rest for at least five consecutive hours, for each run of twenty-eight hours. In other words, cattle shall not be confined in cars for more than twenty-eight consecutive hours, without giving them at least five consecutive hours for rest, food, and water. An act very important, though it is not involved directly in this case. You have heard a great deal about the forty-four hours' run in this case. Every effort to do that is a violation of the express law of the land, unless occasioned by storm or accident.
'In the transit from East St. Louis to Baltimore, in obedience to the law of the land, a delay which said law requires is not an unreasonable delay for which the defendant is chargeable. It was bound to obey the law; and that amount of delay is not a reasonable delay, but a required delay. For all such delays as occurred in that run, pursuant to law, it, so far as being amenable to this plaintiff, is justified, for it was bound by law to make such delays; and the plaintiff himself, having custody of the cattle, is subject to a penalty if he transported the cattle for a longer run twenty-eight hours without giving them, after that, five full hours' rest. So, in computing this question of unreasonable delay, you will bear in mind they were bound to give five consecutive hours for every twenty-eight hours' run.
'It is, therefore, for the jury, in the light of said requirements of law, for such delays, to determine whether there was, in addition thereto, any unreasonable delays caused by negligence on the part of the defendant or the other roads. Take into consideration the distance to be travelled, and the usual and ordinary modes of transportation in such cases. The main question, then, is, whether the cattle were injured from the negligence of the defendant or any of the intermediate lines, without the plaintiff or his agents contributing thereto. If both parties contributed to the injury, neither party can recover from the other.'
To the said charge and statement of facts by the court made to the jury, and to the several propositions therein announced by the court as the law of the case, the defendant then and there excepted.
There was a verdict and judgment for the plaintiff, whereupon the company brought the case here.
Mr. D. W. Paul for the plaintiff in error.
The plaintiff in error was only a forwarder. In the absence of any special contract, it was, therefore, only bound to carry the cattle safely and securely over its own road, and, at its terminus, deliver them to the succeeding company, with suitable directions for their carriage the rest of the way. Railroad Company v. Manufacturing Company, 16 Wall. 318; Railroad Company v. Pratt, 22 id. 123; Story, Bailments, sect. 448; Reed v. United States Express Co., 48 N. Y. 462; Inhabitants, &c. v. Hall et al., 61 Me. 519; Hooper v. Wells, Fargo, & Co., 27 Cal. 40.
The plaintiff in error cannot be held liable for the failure of its connecting line, the Baltimore and Ohio Railroad Company, to forward the cattle from Parkersburg on Sunday. Code of West Virginia (1868), p. 694, c. 149, sects. 16, 17; Pate v. Wright et al., 30 Ind. 476; Powhatan Steamboat Co. v. Appomattox Railroad Co., 24 How. 247.
Mr. John D. S. Dryden, contra.
MR. JUSTICE SWAYNE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse