Henry v. Chicago, Milwaukee & Puget Sound Railway Co.

Citations

• 84 Wash. 633
• 147 P. 425
• 1915 Wash. LEXIS 1246

Syllabus

<p>Cabecees — Cabbiage op Live Stock — Actions—Limitation op Liability. A stipulation in a contract for the shipment of live stock, rendering claims for loss, injury or damage invalid unless presented in writing within thirty days after the same shall have occurred, is not a contract exempting the company from liability, within Rem; & Bal. Code, § 8648, providing that no contract or regulation shall exempt any corporation engaged in transporting live stock by railway from liability of a common carrier of live stock which would exist had no contract, etc., been entered into.</p> <p>Carriers — Carriage op Live Stock — Actions—Burden op Pboop. A contract requiring claims for damages arising from the transportation of live stock by common carriers to be presented within thirty days fixes a condition precedent to right of recovery, and thus imposes the burden of proving the presentment of such claim on the party seeking damages under such a contract of carriage; hence non-suit is proper, where plaintiff’s evidence failed to show the presentation of such a claim, the contract being before the court at the time.</p> <p>New Trial — Newly Discovered Evidence — Surprise. A new trial on the ground of surprise and newly discovered evidence is properly denied, where the surprise consisted in rulings of the court in the progress of the trial inducing plaintiff to believe that the burden of proving thirty days’ precedent notice of his claim was on defendant as a matter of defense, and plaintiff’s newly discovered evidence of presenting his claim was insufficient, consisting of letters received long after expiration of the time limited.</p> <p>Costs- — Mileage—Witnesses. The mileage and per diem fees for witnesses at the statutory rate are properly taxed as costs although they were employees of the prevailing party, and traveled free at such party’s expense; especially where the loss of their employment, their maintenance, and expense in transportation would be no more than repaid