ERROR to the Circuit Court for the District of Massachusetts, in which court J. Pratt and H. Brigham, of Boston, sued, by process of attachment, the Ogdensburg and Lake Champlain Railroad Company, a corporation of New York, to recover from that company damages for the loss of certain horses which Pratt, for the two parties, had put into the company's cars on its road in the said State, and which had been burned to death, not on the said company's road, but on the Vermont Central Railroad; a road in the State of Vermont, connecting with the former, but not belonging to the same corporation, but on the contrary belonging to a different corporation; to wit, a corporation of Vermont. The case was thus: In the northeastern part of New York there exists what is known as the Ogdensburg and Lake Champlain Railroad. The road begins at Ogdensburg, about ninety miles west of Lake Champlain, and runs eastwardly through a place called Potsdam to Rouse's Point on the said lake, at which point it strikes the boundary line between the States of New York and Vermont. This Ogdensburg and Lake Champlain Railroad Company was incorporated under the general railroad law of New York, and possessed the powers possessed by railroad corporations generally, and was subject to the same liabilities as they generally are. At Rouse's Point begins a new railroad, to wit, the Vermont Central Road; a different road, as already stated, and owned by a different corporation, one created by Vermont. The rails of the two roads, however, connect. This Vermont Central Road runs across the State of Vermont in a southeasterly direction till it comes towards the edge of Massachusetts, where it strikes a third road, which, passing through Concord in that State, enters the city of Boston. At the town of Potsdam, above spoken of as near the west end of the Ogdensburg and Lake Champlain road, Pratt, already mentioned, a transporter of horses, went, in March, 1868, to one Graves, who was the station agent at Pottsdam of the Ogdensburg and Lake Champlain road, and informed him that he wished two good 'stock cars' to carry certain horses for himself and Brigham to Boston. Pratt thus testified: 'I have been for twenty years in the habit of buying horses (one or two hundred a year), and of transporting them over the Ogdensburg and Lake Champlain and the Vermont Central roads to Boston. I have known Graves five or six years as station agent at Potsdam. His office was in the freight-house. He always furnished me stock cars. This occurred from five to ten times a year. The cars thus furnished by him went without any change right through over these roads, and the arrangements made by him were always recognized by the roads through to Boston. A week before the horses for whose loss this suit is brought, were brought to Potsdam, Mr. Graves engaged to give me two good stock cars to carry them to Boston. He did at the time appointed give me two cars, and I took my horses to them. I objected to one of the cars. Graves said that I must take it or wait for a week, as no others than these were there. I took the car rather than wait, and repaired it as well as I could. I put in some hay–wet and rotten hay–to keep the horses from slipping. I always did that. One of the railroad hands and I put it in on this occasion; and in full view of the office. This railroad hand had been in the service of the company for three or four years. I then told Mr. Graves that I wished to put in other horses at Rouse's Point. He agreed to this. We agreed upon the price, $85 per car, through to Boston; being the same price as if all the horses had been put in at Potsdam; the horses to be transported from Potsdam; some taken on there and some at Rouse's Point. We had passes to go on the train which took our horses. I always put my horses in and go on the cars myself to take care of the horses, or else send a man. On this occasion Mr. Brigham was in charge all the way. I had no other man. You can't go in the same car with the horses. A place called a box car was furnished for us. The way-bill was thus made out:
The opinion of the court was delivered by: Mr. Justice Hunt delivered the opinion of the court.
Way-bill of merchandise transported by Ogdensburg and Lake Champlain Railroad Company, from Potsdam Junction to Boston, via Concord, March 20th, 1868.
Name and Description Back Total
residence. of articles. Weight. Rate. Freight. charges. charges. Remarks.
J.Pratt,Boston, 1 car horses 20,000.... $85.00 .... $85.00 Coll.
H.Brigham, 1 car horses 20,000 .... 85.00 .... 85.00 .......
'I saw the bill at Potsdam after it was made out.'
The plaintiffs here put this question to the witness:
'In these acts of Graves in furnishing cars and making arrangements for transportation through to Boston as testified by you, for whom did he assume to act?'
The defendant objected to the question, asserting that the witness could be asked only as to what was said and done, and that the question was incompetent on this account, and as calling from the witness an expression of his own opinion or inference. The court admitted the question, and defendant excepting, the witness answered:
'He assumed to act for the Ogdensburg and Lake Champlain Railroad Company.'
In consequence of the cars being broken and very much exposed, and sparks from the locomotive getting into them the hay took fire, and the horses were burnt to death. This took place on the road of the Vermont Central Company. Some of the horses were put in at Rouse's Point.
No freight was paid on this particular occasion at Potsdam; and indeed it was generally paid, in transactions between these parties, in the depot in Boston.
The defendants produced Graves, the station master already mentioned. He testified that there were several cars at Potsdam when Pratt brought the horses to the station, and that he could have had his choice, and as he, the witness, supposed did have it; that all cars were examined before being sent off, and if unfit were reported; that the cars were 'billed' as per the way-bill above shown; that the freight might have been paid in advance, but was not; that the witness knew of no hay put into the cars; that ...