Alexander v. Am. Ry. Express Co.
| Decision Date | 15 May 1923 |
| Docket Number | No. 35132.,35132. |
| Citation | 195 Iowa 1155,193 N.W. 560 |
| Parties | ALEXANDER v. AMERICAN RY. EXPRESS CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; F. L. Anderson, Judge.
On February 15, 1921, one Melburg delivered to the defendant a thoroughbred Poland China sow for transportation from Norway, Iowa, to Arlington, Tex. A shipping contract was entered into, and the value of the animal was therein stated to be $300. The sow died while en route, between Ames and Des Moines. The jury returned a verdict for the plaintiff, and the defendant appeals. Affirmed.Carl F. Jordan, of Cedar Rapids, for appellant.
Frank C. Byers and Geo. C. Gorman, both of Cedar Rapids, for appellee.
The appellee alleged and offered evidence to prove that the sow in question was delivered to the appellant properly crated and in good condition. Appellee's evidence disclosed that shortly before the animal was delivered to the appellant it was examined by a veterinary surgeon, who found it to be in good health. The value of the animal was established at $300. The appellee proved these facts, and that the animal was not delivered by the appellant to the consignee, and rested his case. Appellant moved for a directed verdict at the close of appellee's testimony, which motion was renewed at the close of all of the testimony. The motion was overruled. The hog was delivered to the appellant about 15 or 20 minutes before train time. At that time the animal was quiet, and was standing in the crate, which was placed in the car by three men. The hog weighed between 500 and 600 pounds, and was two years old. The crate was about three or four inches longer than the hog, and the top was four or five inches above the hog, and there was a three inch space on each side. The crate was made of pine slats. The express agent testified that there was nothing unusual in reference to the conduct of the hog until after the train left Norway. Soon thereafter, however, the animal began to be disturbed and to bite and tear the slats of the crate. According to his testimony, the hog was near the side of the door, with its head within a foot and a half of the door, and the express messenger lifted one end of the crate and turned it around so that the damaged portion was against the wall of the car. He noticed that the sow pushed against the back of the crate, and was chewing and biting the slats at the end of the crate. The animal continued to act this way until the train arrived at Ames, where there was a 40-minute stop. At that time the animal had apparently quieted down, and when the train arrived at Des Moines the hog was dead. The messenger did not know when it died. The following day the carcass was returned to Ames, where it was turned over to a professor of veterinary pathology at the Iowa State College, who made a post mortem examination. He found the front of the crate was considerably splintered and broken, and had apparently been chewed by the hog. There were bloodstains about the animal's mouth. The straw in the crate beneath the animal's head was bloodstained. The veterinarian discovered eleven pigs in the uterus. There was a pig on each side, or “horn,” of the uterus, nearest the opening, that was about one-third the size of the other pigs, and was in a soft and mascerated condition. In the opinion of the doctor, these pigs had been dead for a month, or possibly more. There was pus in the uterus. The other pigs had not been dead any longer than the hog itself, in his opinion. The entire genital tract was somewhat decomposed. Below the hog's tail, five or six inches, were two muscles that were torn loose from their attachments. A small portion of the right side of the pelvis had been fractured and, in the opinion of the veterinarian, this occurred before the animal died. A vertebra about the middle of the animal's back was fractured transversely. It was the opinion of the veterinarian that this break occurred after death. He testified that it was very difficult to diagnose the cause of the animal's death, but that, in his opinion, the condition he found in the uterus might have caused the death, and that there were no external injuries that could have entirely explained the death.
I. Appellant's chief and main contention is that the court should have sustained the appellant's motion for directed verdict at the close of the appellee's testimony, which motion was renewed at the close of all of the testimony, on the ground that the appellee did not make a prima facie case of negligence by proving that the animal was delivered to the appellant properly crated and in apparently healthy condition, and that it was not delivered to the consignee. Appellant contends that this showing was not sufficient to make a prima facie case, but that the appellee was required to go farther, and prove that the death of the hog resulted from some act of human agency for which the appellant was responsible.
The appellant cites and relies upon the opinion in the case of Doty v. Wells Fargo & Co. Express (Iowa) 188 N. W. 37. The opinion so reported has been withdrawn. 193 N. W. 28.
[1] The rule is well established in this state that, where a plaintiff alleges and proves that live stock is delivered to a carrier in good condition, and is found in bad condition on its arrival at destination, or fails to arrive, a prima facie case of negligence is made out which the carrier must overcome in order to relieve itself from liability, where no caretaker accompanies the stock. McCoy v. K. & D. M. R. Co., 44 Iowa, 424;Swiney v. American Exp. Co., 144 Iowa, 342, 115 N. W. 212, 122 N. W. 957;Colsch v. Railway Co., 149 Iowa, 176;1Mosteller v. Iowa Cent. Ry. Co., 153 Iowa, 390, 133 N. W. 748;Gilbert Bros. v. C., R. I. & P. Ry. Co., 156 Iowa, 440, 136 N. W. 911;Ruebel Bros. v. American Exp. Co., 190 Iowa, 600, 180 N. W. 658;Buck v. American Ry. Exp. Co. (Iowa) 192 N. W. 277, decided March 13, 1923. This is the rule recognized generally. See Am. Ry. Exp. Co. v. Dunnaway, etc., 17 Ala. App. 649, 88 South. 60;Bates v. Am. Ry. Exp. Co. (S. D.) 187 N. W. 634;Ark. Cent. R. Co. v. McCuen, 234 S. W. 617;2Louisville & N. R. Co. v. Hunter, 185 Ky. 165, 214 S. W. 914.
The appellee in this action sought to do no more than to establish a prima facie case by alleging and proving the delivery of the animal to the carrier, properly crated, and in a sound and healthy condition, and that the carrier failed to transport and deliver the animal to the consignee. Appellee also proved that there was no caretaker accompanying the animal, and proved its value, and thereupon rested. This made out a prima facie case for the appellee. In this case, as in the Ruebel Case, supra, the appellee in both his allegations and proof, limited himself to stating such a prima facie case. No specific mishandling or negligence was alleged, nor was...
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