Alabama & V. Ry. Co. v. Sparks
| Decision Date | 19 March 1894 |
| Citation | 16 So. 263,71 Miss. 757 |
| Parties | ALABAMA & VICKSBURG RAILWAY CO. v. SPARKS |
| Court | Mississippi Supreme Court |
FROM the circuit court of the first district of Hinds county. HON J. B. CHRISMAN, Judge.
Appellee Sparks, was the owner of a car-load of horses, shipped under a special contract from San Antonio, Texas, to Jackson, Miss. By the contract, he was given transportation free, and he had the care of the horses. One stipulation of the contract was that he released the carriers from liability on account of any delay in transporting the horses, and another was that he would not hold them responsible for damage resulting from the animals being wild, unruly, weak or maiming each other, or because of heat and other results of being crowded. It was also stipulated that the actual cash value of the animals at the time and place of shipment was to be the measure of recovery in case any of the animals were killed.
This action was brought to recover of appellant damages for the death of one of the horses and injury to another, caused by alleged negligence in transportation. There was evidence to show that the horses arrived at Vicksburg, Miss. without injury, and that from Vicksburg to Jackson the run was only about three hours. On the evening of the day the horses arrived at Vicksburg, after being fed and watered, they were reloaded at about five o'clock in the afternoon, at which time plaintiff supposed they were to be carried directly on to Jackson. But, after the car had been taken from the stock-yard to a point about half a mile away, he was informed that the train would not leave Vicksburg until six o'clock the next morning. He protested against this, and asked that the car be taken back to the yard, in order that the horses might be unloaded, but was informed that the company had no night switch-engine or crew, and that, as the train left very early in the morning, unless he allowed the horses to remain in the car where they were, they could not be taken out at all. In other words, he was informed that, if the car was taken back and the horses unloaded, they would have to be brought out the next evening and wait over until six o'clock the following morning, at which time the first freight-train would leave. Ascertaining that this would be the case, he finally acquiesced. He testified that the animals, crowded in the car, standing still, were more likely to injure one another than when the car was in motion, and that, while the animals injured one another, the injury might not or would not have resulted if the car had been left unloaded over night and loaded early, in time to be carried out by the first train. It was claimed that the real cause of the injury was leaving the animals standing all night at rest in a crowded car. The evidence further tended to show that the horses were fresh and sound when they were put in the car. On behalf of defendant, it was shown that the train and horses received no rough handling; that the horses were all right at 7:20 o'clock in the morning, but that, at a station a short distance out from Vicksburg, one horse was discovered down, when the conductor furnished plaintiff a plank to separate the horse that was down from the others and the conductor offered to do all he could to assist plaintiff in taking care of the horses.
The court refused a peremptory instruction for defendant, and on behalf of plaintiff gave the following: "The court instructs for the plaintiff that, if they believe from the evidence that the injury to the animals was the result of the delay of the railroad at Vicksburg in their transportation then they will find for the plaintiff such damages as it appears by the evidence he sustained on account of such delay."
Verdict and judgment for plaintiff. Motion for new trial overruled. Defendant appeals. The opinion contains a further statement of the case.
Judgment affirmed.
Nugent & Mc Willie, for appellant.
The proximate cause of the injury is readily attributed to the other animals in the car. The trial court charged the jury that it could find for the plaintiff, if it believed the injury was the result of the delay in transportation. That was a pure matter of fact, to be judged of by them as well without as with instructions. In Railway Co. v. Bigger, 66 Miss. 319, it was held that an injury inflicted upon the animal itself, without fault on the part of the carrier, or caused by other animals with which it was being transported in the same car, comes within the reason and spirit of the exception to the rule of common law liability. Animals transported in a manner contrary to their habits and instincts, may injure each other, notwithstanding every reasonable precaution. For such occurrences the carrier is not answerable. Railroad Co. v. Abels, 60 Miss. 1017; Railroad Co. v. Scruggs, 69 Ib., 418.
It was not actual negligence to leave the loaded car standing on the track over night....
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