Allen v. Chi., B. & Q. R. Co.

• Decision Date: 19 November 1908
• Docket Number: No. 15,368.,15,368.
• Citation: 82 Neb. 726,118 N.W. 655
• Parties: ALLEN v. CHICAGO, B. & Q. R. CO.
• Court: Nebraska Supreme Court

82 Neb. 726

118 N.W. 655

ALLEN

v.CHICAGO, B. & Q. R. CO.

No. 15,368.

Supreme Court of Nebraska.

Nov. 19, 1908.

Syllabus by the Court.

A railway company engaged in the business of a common carrier is obliged to furnish reasonably safe and suitable cars for the transportation of horses tendered to it for shipment; and, if a car offered a shipper can only be made thus safe and suitable by the use of bedding, it is the duty of the carrier to furnish that bedding.

Nor is the carrier relieved of that duty by the agreement of the shipper to load and unload his stock, and to feed, water, and care for it in transit.

The burden of proof to establish the affirmative of an issue involved in an action rests upon the party alleging the facts constituting that issue, and remains there until the end.

In an action for the negligent failure of a carrier to properly bed a car so that it would be reasonably safe for the transportation of stock, where the proof is undisputed that the car was unsafe because of improper bedding, testimony concerning the custom of the carrier in preparing other cars for like shipments, if irrelevant, is without prejudice to defendant.

Where the evidence tends to establish that a shipment of horses was materially delayed while the stock was in the carrier's possession; that the stock was in good condition when received by the carrier and injured and damaged when delivered to the consignee--it is not error to submit the question of unreasonable delay to the jury.

“An instruction, which, if standing alone, might be erroneous, may not be so when considered with the other instructions upon the same subject, given in connection therewith.” Lincoln Traction Company v. Brookover (Neb.) 111 N. W. 357.

Commissioners' Opinion. Department No. 2. Appeal from District Court, York County; Evans, Judge.

Action by John B. Allen against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.J. E. Kelby, Geo. M. Spurlock, F. E. Bishop, Fred M. Deweese, and Halleck F. Rose, for appellant.

Gilbert Brothers, for appellee.

ROOT, C.

In December, 1905, plaintiff shipped over defendant's railway a car load of horses from Venango to York, Neb. In transit three of the animals were so injured as to cause their death, and the remaining 21 head were, it is claimed, also damaged. Plaintiff recovered judgment for defendant's alleged negligence, and defendant appeals.

1. Exception is taken to the instructions of the court that the alleged negligence of defendant in not properly bedding the car wherein the horses were shipped was an element in plaintiff's cause of action. The horses were transported by virtue of a stock shipper's contract, which provided, among other things: “And in consideration of free transportation for ______ persons, designated by the first party, who have indorsed their names hereon in the presence of the agent, hereby given by said railway company such persons to accompany the stock, it is agreed that the said cars, and the said animals contained therein, are and shall be in the sole charge of such persons, for the purpose of attention to and care of the said animals, and that the said railway company shall not be responsible for such attention and care. It is agreed that said animals are to be loaded, unloaded, watered and fed by the owner or his agents in charge; that the second party shall not be liable for loss from theft, heat or cold, jumping from car or other escape, injury in loading or unloading, injury which animals may cause to themselves or to each other, or which results from the nature or propensities of such animals, and that the railway company does not agree to deliver the stock at destination at any specified time, nor for any particular market.” Bearing in mind that the verdict for plaintiff resolves all disputed question of fact in his favor, it may be said that Venango is situated in the western part of the state; that plaintiff maintains a stock ranch in the vicinity of said town, but resides in York, some 300 miles distant. Plaintiff's son, who was in charge of the ranch, phoned defendant's agent at Venango that he wanted a 30-foot stock car, well bedded, next Sunday night to ship a load of horses to York, and the agent later informed the young man that the car was ready. The horses were driven to the station Sunday afternoon, and plaintiff's son then learned that the car was not bedded, and that the floor thereof was new construction and very hard and smooth. Defendant's agent stated that they were out of bedding, and suggested that Allen had better procure and spread over the car floor some manure which he could secure at a livery stable. Two such loads were thus placed in the car. The evidence is uncontradicted that the car, unless bedded with sand, cinders, hay, or straw was not safe for the transportation of horses, and that the addition of the manure furnished little, if any, additional security.

It is patent from an inspection of the bill of exceptions that a considerable part of plaintiff's loss can be traced directly to a lack of bedding in the car. Defendant argues that, by reason of the contract, and independent of it, the duty rested on plaintiff to bed the car. That, especially in the matter of shipping horses, because of the opinions of different shippers, it is impossible to adopt any method of bedding that would be uniformly satisfactory, and that when defendant furnished the shipper a sound, properly constructed car for the transportation of his stock, its duty as a common carrier, so far as the car was concerned, was discharged. We are of opinion, however, that it was the defendant's duty to furnish plaintiff a reasonably suitable and safe car for the transportation of his horses. That, if the car furnished could only be made...