Brounton & Robertson v. Southern Pacific Co.

This is an appeal by the plaintiffs from a judgment dismissing their action upon motion of defendant for nonsuit and motion granted.

The complaint is for damages in the sum of $387.18 against the defendant for failure, as a common carrier, to carry from Sacramento and deliver at Wheatland to the consignee certain moldings and other building material, said defendant having undertaken and agreed to do so; alleging as follows: "That defendant did not safely carry and deliver the said goods pursuant to said agreement, but, on the contrary, defendant so negligently and carelessly carried and hauled the same in his calling as common carrier, that the said goods were wholly destroyed and lost to the plaintiffs."

Defendant's answer denies all the material allegations of the complaint, and alleges that the goods were received by *Page 175 it under a special contract, which contained the following: "Delivery: Freight carried by this line must be removed from the station immediately on its arrival, being at owner's risk thereafter, and if not taken within twenty-four hours after arrival it may be stored at the owner's risk. Responsibility: The responsibility of this company and each succeeding carrier for loss or damage does not extend beyond its own line. None of said carriers is to be liable for any loss or damage of any kind, except such as may be proximately caused by its negligence." There is still another clause in the agreement referred to in the answer, which reads as follows: "We hereby agree that none of the said carriers is to be liable for any loss or damage of any kind, except such as may be caused by its gross negligence."

There seems to have been a failure of plaintiffs to execute this release claim, and therefore it could have no binding effect.

The execution of this written contract was admitted, and went in evidence without objection on cross-examination of plaintiffs' witnesses and as a part of plaintiffs' case, and the bill of exceptions contains the following stipulation relating thereto: "It is hereby stipulated that at the time of the making of the aforesaid shipping order, the said Southern Pacific Company made and delivered to the said Braunton Robertson a shipping receipt signed by it which was and is in the words and figures the same as the foregoing shipping order, and on the back of said shipping receipt was and is the same words and figures as those contained on the back of the foregoing shipping order, and the said shipping order and shipping receipt constituted the contract between the aforesaid parties, as plead in the answer." Plaintiffs also admit in their brief that defendant could limit its liability as a common carrier. (Civ. Code, sec. 2174)