
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Sheppard.
    
      Common carrier — Cannot limit liability by special agreement— Law governing contract made in one state and to be performed in another — Evidence of pedigree of horse competent as affecting its value — Published record as evidence — Expert testimony.
    
    1. It is the settled law of this state that a common carrier cannot, by special agreement, relieve himself from responsibilitv for his own negligence, nor limit his liability for losses resulting therefrom.
    2. A contract made in one state or country to be performed in another, is governed by the laws of the latter, which determine its validity, obligation and effect.'
    3. Where a railroad company receives live stock in another state, under a contract there made, to transport it to a designated place in this state, and while the stock is being carried in this state it is injured by the company’s negligence, the rights of the parties, in an action for damages for the loss, are governed by the laws of this state, and not by those of the state where the contract was made.
    4. In an action to recover the value of a trotting horse, evidence of his pedigree, and that some of his blood relations have a record for speed, is competent as affecting his value.
    5. When such record is published by authority of a recognized trotting association, and thé publication is accepted and acted upon by those interested in and conversant with such matters, as authentic and official, it is not error to admit evidence of,the horse’s speed as shown by that record: but the testimony of a witness to information he claims to have obtained from the record is incompetent.
    6. One who for ten years has made car building his business, and given special attention to car wheels, and their construction, is competent to give an opinion of the value, of the hammer test as a means of discovering defects in car wheels.
    (Decided February 2, 1897.)
    Error to the Circuit Court of Franidin county.
    Sheppard delivered to the Terre Haute & Indianapolis Railroad Company, at Lovington, in the state of Illinois, a car load of horses which that company agreed to transport over its line to Indianapolis, Indiana, and there deliver them to plaintiff in error for carriage to the city of Columbus, Ohio. The contract with the former company is in writing-, and contains a stipulation that, ‘ ‘in case of any loss or damage, the liability of said company and of any connecting line shall not exceed $100 per head. ’ ’ The horses were safely delivered to the plaintiff in error, at Indianapolis, and received by it in good condition; but while being transported over its line in this state, a defective wheel of one of the cars in the train gave way, in consequence of which, one of the horses was killed, and the others were injured. Sheppard brought suit in the court of common pleas of Franklin county, against the plaintiff in error for damages, alleging that his loss was occasioned by the company’s negligence,
    The company denied negligence on its part, and pleaded the stipulation in the contract, above set forth, as a limitation on its liability, averring that the contract was made in the state of Illinois, where, under the law of that state, such stipulation is valid'. Issue was joined on the allegations of the answer, and on the trial evidence was given by both sides tending to prove what the law of Illinois on the subject was when the contract was mad'ec The plaintiff recovered more than the amount limited by the contract, and that judgment was affirmed by the circuit court. The railway company prosecutes error here to obtain the reversal of both judgments. A further statement of the facts pertinent to the questions raised* will be found in the opinion.
    
      Watson, Burr <& Livesay and F. M.- Sackett, for plaintiff in error.
    That the contract was to be governed by the laws of Illinois is clear and was admitted by the trial court. Hutchinson on Carriers, sections 140-144a; First National Banky. Shaw, 61 N. Y., 283; Liverpool, etc., Steam Co. v. Insurance Co., 129 U. S., 397; Alexander v. Pennsylvania Co., 48 Ohio St., 623.
    That the law prevailing in the state of Illinois upon the subject in question was a fact to be proven on the trial like any other fact, is also clear. Alexander v. Pennsylvania Co., supra; Kline v. Baker, 99 Mass., 253; Smithy. Smith, 21 Pa. St, 317; Railroad Co. v. Morrison, 19 111., 136; Railway Co. v. Read, 37 111., 484; Oppenheimer v. Express Co., 69 111., 627; Arnold v. Raihoay Col, 83 111., 273; Adams Express Co. v. Stettaner, 61 111., 184.
    The Morrison, Read and Arnold cases, lay down the rule as it is stated in the Morrison case — “That railways have a right to restrict their liability by such contracts as may be specially agreed upon, they still remaining liable for gross negligence a.nd wilful misfeasance.” As to what words in the contract are necessary to give an exemption from negligence -nothing is said in any of the cases. They speak only of “such contracts as may be specially agreed upon,” thereby leaving the scope of the contract to the ordinary rules for the construction of contracts. The contract in the case at bar releases “from any loss or damage.”
    Apply to that the ordinary rules of construction set out in the elementary works. 2 Parsons on Contracts (7th Ed.), 632.
    It is, then, in the comprehensive, general and common sense, we must take the wording of the clause, “for any loss or damage.” "What wider term could be used? “Any” in such a connection covers all and every loss. Can it be said that the cause of the damage will restrict the meaning of this word “any?” Its natural and obvious meaning is every loss of every kind, no matter to what cause it may be due.
    But by another of the elementary rules of construction the clause is limited. It cannot apply to losses due to the defendant’s gross negligence or wilful misfeasance. 2 Parsons on Contracts, 636; D.avidson v. Graham, 2 Ohio St., 131.
    Errors in ruling upon the admissibility of evidence. „
    Mr. Sheppard placed the value of the mare “Mora” at $2,000.00 and his damages in her case at $1,500.00. The defendant claimed she was not worth more than $300 and was not injured at all, consequently the chief contest as to the damages arose in her case*.
    The plaintiff was asked to give the “time” or the “record” which had been made by these various horses, the kindred of Mora. Objection was made because the evidence was too remote and was therefore irrelevant; the objection was overruled and exception taken.
    On being examined as to how he obtained this knowledge, he testifies that the Secretary of the American Trotting Association keeps a record, and that the only knowledge of the witness on the subject was derived from reading his annual published reports. How the secretary obtained his' knowledge did not appear.
    These reports were not official records. The secretary who kept the record was not called as a witness, nor his deposition produced. There was no sworn copy from his record, nor was it made to appear that his record was entitled to credence. Much less were his unsworn published reports*, and least of all Mr. Sheppard’s oral testimony as to their contents, entitled to be admitted as evidence on any principle of law known to us. Wharton on Evidence, section 664.
    The question at issue was whether the “hammer test,” that is striking the wheels^ with a hammer to detect cracks, was a useful or valuable safeguard, in the inspection of car wheels in actual service. Our point was, and is, that connection for any number of years with the manufacture of ears, or ear wheels, would not qualify a person to speak upon this subject.
    That this was a question of peculiar skill and knowledge and therefore one for expert testimony is admitted.
    But “before a witness can be allowed to give testimony as an expert, it must be made to appear that he is an expert or experienced person in the matter concerning which he is to testify. -Rogers on'Expert Testimony, 2d. ed., section 18.
    
      That it was prejudical goes without saying. It was prejudical because the only witness who could be found to testify in support of plaintiff’s claim that the omission of the hammer test in actual service was negligence, was one who knew nothing about it. But the presumption is that it was prejudicial. Board of Education v. Mills; 38 Ohio St., 383.
    The prejudice was enhanced by the charge of the court. The witnesses for defendant had testified that the best inspection was by the eye. No “test” was mentioned in the testimony except this hammer test. Not a scrap of testimony in favor of it was before the jury except this given by Cox.
    
      J. W. Mooney, for defendant in error.
    I. The contract does not determine and fix liability of the plaintiff in error. The transportation was not thorough. B. R. Co. v. Pontius, 19 Ohio St., 236; Snyder v. Express Co., 63 Mo., 376.
    Contract of express company to forward money to the nearest point on its own line and to deliver to other parties, to complete the transportation aad liability to terminate. Held, that a carrier may make a contract to carry as far as he goes, and limit his common law liability, but not from his negligence. Rogers v. The Creed Western R. R., 32 U. C. Q. B„, 89; Express Co v. Motioned Bank, 69 Pa. State, 394; Reed v. The U. S. Express Co.; 48 N. Y., 462; Berg v. Railroad Co. 39 Kan., 561; I). (& M. Go. v. Farmers' Bank, 20 Wis., 122; JEtna Ins. Co v. Wheeler et eol., 49 N.. Y., 616; Express Co. v. Elaines, 67 111., 137; Shiffv. Reoilrocod Co.,23 Sup. Ct., 278.
    
      The Pan Handle was not a party to the contract. Railway Co v. Pontius, 19 Ohio St., 235; Martin v. Express Co., 19 Wis., 336.
    II. The adjudicated cases of Illinois offered iri evidence by plaintiff in error, do not sustain the allegations of its answer.
    III. Even if the contract referred to and madea part of the petition of the defendant in error fixes and determines the liability of the plaintiff in error, the law of Illinois does not govern its interpretation and validity, for the reason the contract shows upon its face it is to be performed, in so far as the plaintiff in error is concerned, in the states of Indiana and Ohio. The law of the state of performance governs the interpretaion and validity of the contract, and not the law of the place where made. Kenaga v. Taylor, 7 Ohio St., 142; Holloman v. Holloman, 7 La. An., 607; Goclin v. Shipp ly, 7 B. Mon; ,'575; Broadhead v. Hoyes, .9 Mo.,'56; Dorsey v. Hardesty, 9 Mo., 157; Cox v. TJ. S., 6 Pet., 172; Pritchard v. Horton 106 U. S., 124; Boyle v. Zacharie, 6 Peters, 635; Brown v. Railroad Co., 83 Pa. St., 316; Dyke v. Railroad Co., 45 N. Y., 113; Railroad Co. v. Smith, 74 111., 197; Barter v. ‘ Wheeler, 49 N. H., 9 ; Story, Conflict of Laws, section 280.
    V. Unless the foreign law be pleaded the presumption is that it is the same as the lex fori and in its outlines the common law. 1 Greenleaf on Evidence, section 43n and cases there cited. Holmes v. Broughton 10 Wend., 75; Swages v. HHeil 49 N. Y., 298; Flato v. Mulhull 72 Mo., 522; Hickman v. Alpaugh, 21 Cal., 225; Atkinson v. . Atkinson, 15 La. An., 491; Commonwealth v. Kenny, 120 Mass., 38n; Reese v. Harris, 27 Ala., 301.
    A common carrier, by special contract with the owner of goods intrusted to him may so far restrict his common law liability as to exonerate himself from losses arising from causes over which he had no control, and to which his own fault or negligence in no way contributed.
    But he cannot, by such stipulation, relieve himself from responsibility for losses caused by his own negligence or want of care and skill. Adams Express Co. v. Schwab, 53 Ohio St., 659; Graham v. Davis, 4 Ohio St., 362; Pavidson v. Graham, 2 Ohio St., 132; Welsh v. Railroad Co., 10 Ohio St., 65; Railroad Co., v. Curran, 19 Ohio St., 1; Railroad Co. v. Pontius, 19 Ohio St., 221; Knowlton v. Railroad Co., 19 Ohio St., 263; Express Co. v. Baehman, 28 Ohio St., 144; Gaines v. Transportation Co., 28 Ohio St., 437; Telegraph Co. v. Gris-wold, 37 Ohio St., 301; Railroad Co. v. Locbwood, 28 Ohio St., 358.
    Courts will not, through comity, enforce a contract made, in another state, if it is against the public policy of the state of the forum, and its .citizens are deprived of their rights thereby.
    This is especially true when the breach of the contract occurs in the state of the forum. Huberers 2 vol. B. 1 Tit. 3 psu 26, as given in 3 Dallas, 375.
    Ohio statute prohibits transfer of claims against a citizen of Ohio to a citizen of another state, held, not binding on the courts of West Virginia, who will give judgment. Stevens v. Brown, 20 W. Va., 450.
    Tn Hill v. Spear, the principle was affirmed, but the facts found not such as to justify its application. 50 N. H., 253; Union Loan and Express Co. v. Railway Co., 8 Brown, 23; Tappan v. Poore, 15 Mass., 419; Andrews v. Pond., 13 Pet., 65.
    
      Error in ruling upon the admissibility of evidence.
    Counsel for plaintiff in error assert, the court erred in admitting testimony showing the pedigree of the mare “Mora, ” for the reason the evidence was too remote and therefore irrelevant.
    The pedigree of the mare “Mora” was shown by the testimony of Mr. Sheppard. It seems that a Mr. Stiner, secretary of “The American Horseman and Trotting Association, ” has been publishing-a yearly report showing the speed of different race horses. It further appears from the testimony that this publication is recognized by all horsemen as the only authority upon the subject, and was competent to prove the pedigree of the ancestors of the mare “Mora.”
    Counsel for plaintiff in error further complain that the court erred in admitting certain parts of the deposition of the witness, Lewis J. Cox. Mr. Cox was presented as a witness by the plaintiff in error. Upon cross-examination it developed that he was vice president of the Terra Haute Car Manufacturing Company, which company was engaged in building railroad cars, that Mr. Cox had been engaged in this business for ten or eleven; years and the car wheel had been his department during this length of time.
    It is claimed by counsel for plaintiff in error that this testimony did not qualify Mr. Cox as an expert and the court erred in admitting his testimony as such. It seems too apparent for argument that Mr. Cox was qualified as an expert to speak upon the subject in controversy, since he had been engaged for ten years in building the kind of car involved in this case and had especial charge of the wheel department during that time.
   Williams. C. J.

It is not contended that there is sufficient ground for disturbing the judgments below for lack of evidence tending to prove that the negligeneé charged against the defendant was the cause of the plaintiff’s loss; but it is claimed the evidence did not establish gross or wilful negligence, and that under the law of Illinois where the contract for the transportation of the horses was made, it was competent for a common carrier of goods to limit his liability, by special agreement, except as against his negligence of that character. And the principal contention of counsel for the plaintiff in error is, that the trial court erred in its charge concerning the law of Illinois on that subject; the complaint being that the charge, in substance, was a statement of the rule established in this state, instead of that which obtains in Illinois. The parties put in evidence several decisions of the supreme court of that state to prove the law of the state, and counsel in argument seek to maintain different interpretations of those decisions favorable to their respective clients. But if the rights, of the parties are to be determined by the laws of this state, and not by those of Illinois, the charge was not erroneous or prejudicial, though given as the law of that state.

There is nothing to show that any traffic arrangement existed between the two railroad companies, nor any agency or authority of one to contract for the other; and assuming that the plaintiff in error, bjr accepting the horses from the other company, and undertaking to transport them over its line, became a party to the contract with the plaintiff below, it did so at Indianapolis; and its contract was to carry the horses from that point to their destination. No part of its performance of the contract was to take place in the state of Illinois ; aud if the carriage of the property over that part of its road which is located in Indiana could be considered as a performance having the effect 6f making the rights of the parties under the contract subject to the laws of that state, none differing from those of this state were pleaded or proven, and there is no presumption- that they were different. But if the law of Indiana were shown to be the same as that of Illinois is claimed to be, it would not be the law governing this contract. We understand the rule to be, that where a contract is made in one state to be performed in part in another, and an action is brought for a breach of that part of the contract, the rights of the parties must be determined according to the law of the latter state. Story on Contracts, section 655; Barter v. Wheeler, 49 N. H., 9. It is apparent, however, from the face of this contract that it was to be wholly performed in this state. The property was to be transported to Columbus, where the consignee was entitled to receive it from the carrier; the latter was bound to deliver it at that place. The contract could be performed by the company, nowhere -else. Carrying theproperty through a portion of the state of Indiana, did not constitute performance; that was merely a means of enabling the company to perform by delivery of the property at its destination. And the contract being silent as to the time and place of payment of the freight, it was payable” at the time of the delivery of the property to the consignee, and necessarily at the place of delivery; so that, the place of performance by both parties to the contract was in this state. And the rule is that when it appears from a contract made in one state or country that it is to he performed in another, the presumption is, that it was entered into with reference to the laws of the latter, and those laws determine its validity, obligation and effect. Kanaga v. Taylor, 7 Ohio St., 142. Other cases on this subject are largely collected in the briefs of counsel.

It is also the well settled law of this state, that a common carrier cannot, by special agreement, relieve himself from the consequences of his own negligence, nor limit his liability for losses resulting therefrom. This rule is laid down in Welsh v. Railroad Co. 10 Ohio St., 65, as follows: “A railroad company, acting as a common carrier of live stock, cannot by special contract, procure exemption' from responsibility for losses arising from its own neglect of the duties incident to such employment. Such common carrier is liable for damages resulting from defective and unsafe cars or vehicles of transportation, notwithstanding-an express contract to the contrary.” And see Davidson v. Graham, 2 Ohio St., 132; Graham v. Davis, 4 Ohio St., 362; Railroad Co. v. Curran, 19 Ohio St., 3; Railroad Co. v; Pontius, Ibid, 221; Knowlton v. Railway Co., Ibid, 263; Express Co. v. Backman, 28 Ohio St., 144; Express Co. v. Schwab, 53 Ohio St., 659.

We find no error in the charge of the court that could operate to the prejudice of the defendant below.

One of the animals injured while in transit over the defendant’s road, was a mare called Mora ; and the plaintiff was allowed to give evidence of her pedigree, showing her blood relationship to the celebrated trotting horse, Jay Eye See, and other noted horses. This evidence was objected to by the defendant, and the objection here urged against it is, that it was too remote. But the pedigree of a horse usually enters into the estimate of its value; and that of horses kept for racing purposes, is considered of importance among dealers in horses of that kind; and we think the evidence was competent as effecting the value of the mare.

For the purpose of proving the speed of Jay Eye See, and other horses to which Mora was related, in trotting and pacing', the plaintiff was permitted 'to testify to information he obtained from the annual reports of the American Trotting Association, which, it appeared, keeps a record of extraordinary speed made by horses at races held under authority of recognized racing organizations; and it further appeared that the record is issued by the association in published volumes which are accepted and acted upon by handlers and dealers in trotting, pacing and running horses, and persons interested in that kind of stock, as the authentic and official record of the speed shown by noted horses. The defendant objected to this testimony, particularly to that purporting to be information obtained by the witness from the published record. There would seem to be no serious objection to evidence of the fact that the horses had a record for extraordinary speed, nor to proof of that fact by the production of the record. It might be impracticable; if not impossible, to prove the speed of a horse by ej7e witnesses of the races, especially after the lapse of a long time. If such witness were called he could scarcely do more than testify to the speed as that was announced by the judges, or as shown by the published account; and it would become necessary for the witness to refer to the record kept by those in charge, or published under their authority. And when that record is published by such authority, and as so published is acepted and acted upon by those interested in, and conversant with such matters, as authentic and official, we see no reason why it may not be admissible whenever the original would be. The fact that there is such published record, so acknowledged and recognized, enters into the estimation of the value of the horse, and that of his descendants and relatives, among dealers in horses of that kind. The speed of the horse, if that were not generally known, might not be so important as affecting the value. But while such evidence was admissible, it was clearly incompetent for the witness to testify to information which he claimed to have obtained from reading the record as published by the Trotting Association ; and for this error the judgments below must be reversed.

Another question made, relates to the qualification of a witness by the name of Cox, who was permitted to give an opinion on the value of the hammer test as a means of detecting breaks in car wheels. The witness testified that he had been engaged in the business of building railroad cars for ten years, and during that time had given particular attention to ear wheels and their construction. The testimony was competent, its weight was for the jury.

Judgment reversed.  