Empire State Cattle Co. v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 25 January 1905
• Docket Number: 8,157.,8,155
• Citation: 135 F. 135
• Court: U.S. District Court — District of Kansas
• Parties: EMPIRE STATE CATTLE CO. et al. v. ATCHISON, T. & S.F. RY. CO. MINNESOTA & D. CATTLE CO. v. SAME.

135 F. 135

EMPIRE STATE CATTLE CO. et al. v. ATCHISON, T. & S.F. RY. CO.

MINNESOTA & D. CATTLE CO. v. SAME.

Nos. 8,155, 8,157.

United States Circuit Court, D. Kansas, First Division.

January 25, 1905

Botsford Deatherage & Young and R. E. Ball, for plaintiffs.

A. A Hurd, O. J. Wood, and Angevine & Cubbison, for defendant.

POLLOCK District Judge.

The above-entitled cases arose over the shipment of about 3,000 head of cattle from New Mexico and Texas points to Evarts S.D. The petitions of plaintiffs count on a violation by defendant of its duties as a common carrier for hire resulting in loss to plaintiffs. In the interests of time, by agreement of parties, the cases were consolidated for the purpose of this trial, and are now being tried together.

The answers of the defendant allege the contracts for the shipment of the cattle to have been made in writing by plaintiffs with the Pecos Valley & Northeastern Railway Company, limiting the common-law liability of the defendant. These contracts are set forth in extenso in the answers filed, and are admitted by the pleadings in the cases.

It is the contention of the defendant that the damage and loss for which these actions have been brought by plaintiffs accrued to plaintiffs from a flood in the Kaw river, of such an unprecedented and unexpected nature as to constitute what is known in law as an 'act of God.' Defendant also files a cross-demand against plaintiff the Minnesota & Dakota Cattle Company, in case No. 8,157, for money paid the stockyards company at Kansas City, and for pasturage on the cattle during carriage.

The trial of the cases has consumed much time, and the largest latitude has been granted counsel for the respective parties in the bringing out of all the facts and circumstances of the cases. The matter is now before the court on requests for instructions. The facts are practically undisputed, and briefly, in substance, are these:

The cattle were shipped by plaintiffs from Kenna, N.M., Bovina and Hereford, Tex., which stations are on the line of the Pecos Valley & Northeastern Railway Company, on the 25th and 26th days of May, 1903, destined to the pastures of the plaintiffs, in the neighborhood of Evarts, in the state of South Dakota. The contracts of shipment are in writing, and are in the usual form of live stock shipping contracts, limiting the common-law liability of the carrier, and were made between plaintiffs and the Pecos Valley & Northeastern Railway Company. The parts of the contracts material to this inquiry are:

(1) 'That the live stock covered by this contract is not to be transported within any specified time nor delivered at destination at any particular hour nor in season for any particular market.'

(2) 'The company agrees to stop cars at any of its stations for watering and feeding where it has facilities for so doing whenever requested to do so in writing by the owner or attendant in charge, and the party of the second part agrees not to confine his stock for longer period than twenty-eight consecutive hours without unloading the same for rest, feeding and water for a period of at least five consecutive hours, provided he is not prevented from doing so by storms or other accidental causes.'

(3) 'The shipper hereby assumes and releases the company from risks of injury or loss which may be sustained by reason of any delay in such transportation of said stock or injury thereto caused by * * * injury to tracks or yards, storms or washouts, * * * or from any and all other causes whatever. The liability of the carrier or any fact essential thereto in any instance or case shall not be presumed, but the burden of establishing such liability is assumed by the shipper in the event of a suit.'

It is further stipulated that the conditions of said contract shall apply and inure separately in favor of each of the several connecting carriers. It is further provided in the contract:

'And on so delivering to such connecting carrier, all liability of the company whatever, for carriage of or on account of said stock, shall be thereby ended, it being understood the company assumes no obligation whatever on account of the carriage of said stock beyond its road, and that the company shall not be liable for any damage to, injury of or delay of said stock, or of anything whatever that may happen to the same after such delivery or tender of delivery in case such connecting carrier shall refuse to receive the same. Each carrier in the route shall receive such stock when delivered to it, transport the same over its road to the succeeding carrier in the route, and it is distinctly understood that the responsibility of each carrier shall not begin until it receives such stock from the consignor or from the connecting carrier, or, if the last carrier, at the place of destination.'

The contracts entered into do not specify the route of shipment from points of shipment to destination, but the waybills upon which the cattle were shipped, and other evidence, disclose that the cattle were by the initial carrier routed over its own line to Amarillo, Tex.; thence over the defendant's line of road, by way of Wellington, Strong City, and Topeka, to Atchison, Kan.; thence over the Burlington Road to Council Bluffs, Iowa; and from thence to point of destination over the Milwaukee Railway. The evidence further shows that when a part of the shipment arrived at Strong City and another part arrived at Wellington-- stations on defendant's line of road-- the cattle were unloaded for feeding, water, and rest. The cattle were accompanied at all times by owners of the stock, or their representatives in charge, signing the contracts. During the time the cattle were at these stations on the defendant's line of road for feed, water, and rest, the defendant company was notified by the Burlington Road that on account of washouts on its line near Hamburg, Iowa, it could not receive the shipments at Atchison or carry the same as contemplated. Thereupon the defendant company commenced negotiations with the Missouri Pacific Railway to receive the cattle at Kansas City and carry them to Council Bluffs, Iowa; thus performing the part of the service which it was originally contemplated the Burlington should have performed from Atchison, Kan., to Council Bluffs, Iowa. After the defendant was first notified by the Burlington that it could not carry the cattle as contemplated, the Burlington thereafter notified the defendant that its road was in repair, and that it would receive the cattle. A portion of the cattle were thereupon loaded upon the cars of the defendant company and started forward, when the defendant was again notified by the Burlington Company that its line was washed out, and it would not receive the cattle at Atchison. Neither the Burlington Railway nor the Atchison, Topeka & Santa Fe Railway had stockyards at Atchison at the time to accommodate the cattle if forwarded there. A portion of the cattle, consisting of 42 cars, were forwarded to Kansas City, and were received and transported by the Burlington Railway. It was arranged between the defendant and the Missouri Pacific that the latter company should receive and transport the remainder from Kansas City. These negotiations delayed the cattle on the 27th and 28th days of May at Strong City and Wellington after their arrival at these points. Thereafter, under the arrangement with the Missouri Pacific, the cattle were forwarded to Emporia, Kan., and from thence, by way of North Ottawa, to Olathe, Kan., and thence to the Kansas City stockyards over the Frisco tracks, and were there received in the night of the 29th and morning of the 30th days of May, 1903. Twenty cars of the cattle were transferred by the defendant to the Missouri Pacific tracks, and were by that company placed at its stockyard chutes, and were unloaded by the stockyards company. The remainder of the cattle were unloaded from the cars where placed by the defendant company in the stockyards. Efforts were made by the representatives of the plaintiffs accompanying the cattle, on the 30th day of May, to have the cattle forwarded to point of destination, but without success. The Missouri Pacific Railway made an attempt to move a portion of the cattle, but did not succeed in so doing; and the cattle were left in the stockyards at Kansas City on the day and night of the 30th day of May, and for many days thereafter, as hereinafter stated.

It appears from the evidence that during the greater part of May, 1903, unusual and unprecedented rains fell in the watershed of the Kansas river, which empties into the Missouri river at Kansas City. To such an extent was this true that a vast amount of property located in the valley was inundated and destroyed by high water in the Kaw river following in consequence of such rain. The railways running along and across this valley were overflowed, and the property destroyed. The railway and other bridges crossing the river were in almost every instance carried away by the flood. Many thousands of homes in Kansas City were submerged and the inhabitants fled to the hills and other places of safety, with nothing saved from destruction but the clothing they had on. Business houses and contents were submerged and destroyed. The water in the river covered the entire valley to a depth of from 10 to 20 feet. Nothing like it ever before occurred in the history of the valley. It was, in fact, as shown by the evidence, a great public calamity to Kansas City and other cities and towns in the valley. The stockyards in which the cattle in question were located were, for the first time in history, inundated on the night of the 30th and the morning of the 31st of May. To save the cattle in question from drowning, they were driven up into...