Loeser v. Chicago, Milwaukee & St. Paul Railway Co.

NewmaN, J.

It was a question for the jury whether it was negligence to drive the horses loose into the pen, instead of leading them separately, so as to have them at all times under safe control. The question seems to have been fairly submitted. The verdict is conclusive of the liability of the defendant, unless it is excepted from liability by that provision of the contract which declares that “ the company shall not be liable for the acts of the animals themselves, or to each other, . . . or from loading or unloading them.” *574 But this should not be construed into a provision to exempt the company from the consequences of its own negligence or the negligence of its servants. Such provisions are not favored. But this was designed rather to declare the exemption of the company from liability for such injuries as. might happen to the horses by reason of the natural propensities of the animals themselves, or by the peculiar hazards of loading and unloading them, and was put into the-contract from abundance of caution in that respect. It was to provide against liability for such injuries as were really beyond the control of the carrier, by reason of their cause being the natural propensity or temper of the animal itself. It contemplates such injuries only as might happen during the carriage proper, or while being loaded or unloaded, and not such as might happen by reason of the natural propensities of the animals themselves while in the company’s yard for rest or food. Ordinary care might well require that, at such a time, vigilance be used to guard against and restrain the natural propensities of the animals themselves, in order to prevent injuries. Express provisions in the contract of carriage that the carrier assumes liability only'to the extent of an agreed valuation are upheld, as not being against public policy, even in case the loss or damage be through the negligence of the carrier. The carrier must respond for its negligence up to the agreed value. Black v. Goodrich Transp. Co. 55 Wis. 319; Abrams v. M., L. S. & W. R. Co. 87 Wis. 485; Hart v. Pennsylvania R. Co. 112 U. S. 331. This contract of carriage contained such a provision. In this respect the contract is identical with the contract in Hart v. Pennsylvania R. Co., supra, which was held in that case to limit the recoveiy. The plaintiff should have had judgment on the verdict for the amount of the agreed valuation.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment on the verdict in favor of the plaintiff for $100.