Atchison, T. & S. F. R. Co. v. Merchants' Live Stock Co.

• Decision Date: 12 November 1923
• Docket Number: 6191.
• Citation: 293 F. 987
• Parties: ATCHISON, T. & S.F. RY. CO. v. MERCHANTS' LIVE STOCK CO.
• Court: U.S. Court of Appeals — Eighth Circuit

293 F. 987

ATCHISON, T. & S.F. RY. CO. v. MERCHANTS' LIVE STOCK CO.

No. 6191.

United States Court of Appeals, Eighth Circuit.

November 12, 1923

Gardiner Lathrop and James L. Coleman, both of Chicago, Ill (W. C. Reid and J. M. Hervey, both of Roswell, N.M., and E C. Iden, of Albuquerque, N.M., on the brief), for plaintiff in error.

W. A Dunn, of Roswell, N.M. (L. O. Fullen, of Roswell, N.M., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and BOOTH and FARIS, District Judges.

SANBORN Circuit Judge.

The Merchants' Live Stock Company, a corporation, called herein the plaintiff, brought an action and recovered a judgment against the Atchison, Topeka & Santa Fe Railway Company, a corporation, herein called the defendant, for damages for its alleged negligence in the transportation from Avalon, N.M., to Kansas City, Mo., and in the feeding, watering, loading, and unloading of 1,088 grown cattle and 597 calves. Upon a writ of error this court reversed that judgment chiefly because the trial court, after declaring the law, as contended for by the plaintiff, to be 'that it was the duty of the caretakers to assist in unloading, feeding, watering, resting, and reloading the cattle, and that if the caretakers, by using their reasonable diligence and the means at their command, could have prevented or diminished the damage done, then any such damage which might have been so prevented, or the amount in which such damage might have been diminished, the defendant was not responsible for, ' added, over the objection and exception of the defendant, this charge:

'And it is for you to say, from all the evidence in this case bearing upon that point, whether or not, under all the circumstances as they existed at the time, the use of reasonable diligence on the part of the caretakers and the means at their command required them to assist in the unloading, feeding, watering, resting, and reloading of the cattle at Strong City.'

This court held that there was error also in the admission of certain evidence not material now, and declared that other assigned errors had been considered and were deemed to be without merit. Atchison, Topeka & Santa Fe Railway Co. v. Merchants' Live Stock Co., 273 F. 130.

The case was remanded to the court below for a new trial, whereupon the defendant, without objection on the part of the plaintiff, filed an amended answer, wherein, after denying negligence on its part, it for the first time pleaded by way of new matter that, if the cattle were damaged en route, other than by the elements and the cold and chilly weather, such damage was caused by the negligence of the plaintiff, acting by and through its caretakers, by their failing to assist in unloading loading and reloading such cattle, and by their failing to assist in feeding and watering the cattle at Amarillo, Tex., and at Strong City, Kan., and by their further negligence in failing to keep the cattle on their feet on their way from Amarillo to Strong City. To this answer the plaintiff filed a reply, in which it denied all the averments therein, and upon these pleadings the case went to its second trial.

The plaintiff claimed negligence of the defendant at Amarillo, the first unloading place, in that the two trains carrying them, consisting of 41 cars, were unduly delayed there, and the cattle were not provided with sufficient feed and water; in that the trains were unduly delayed about an hour and a half, roughly handled, and jerked on the way from Wellington to Strong City; in that the cattle were unloaded at Strong City into muddy and unfit pens, were not provided with sufficient space for rest there, or with sufficient food or water, and were negligently unloaded and reloaded at that place.

The defendant claimed that the delay of the trains at Amarillo was unavoidable, because the transportation was in October, 1917, during the war, when it was compelled to give precedence in the use of its transportation facilities to the demands of the United States; that a compliance with those demands, and the fact that its cattle pens at Amarillo were occupied by prior shipments at the time this shipment arrived there, made it impossible for it to avoid the delay at that station, and that it provided there sufficient feed, water, and space for the cattle; that the trains were not roughly handled or jerked between Wellington and Strong City, and that the delay between those stations was unavoidable, because of an unanticipated strong, cold wind which prevented speedier transportation; that it furnished adequate facilities for feeding, watering, and resting the cattle at Strong City; that the pens used by the cattle were not muddy; that it was active, diligent, and careful in loading and unloading the cattle at that place, and that the damage to the cattle there, where about 50 of them were left, because they had died or had become too weak to be reloaded, was caused by their emaciated and weak condition when shipped, and by the refusal and failure of the plaintiff, through its caretakers, to assist in unloading, feeding, or watering the cattle, or in reloading them, until the damage had been inflicted upon them; that the trains arrived at Strong City at 1 o'clock a.m., in a cold, piercing wind and sleet storm; that the manager of the plaintiff and three other caretakers, in whose charge the shipment was, and who had received free transportation to go with and care for the cattle, failed and refused to assist, and notified the defendant they would not, and they did not, assist, in unloading the cattle for many hours after the arrival of the trains, and did not assist in feeding or watering the cattle at all, while the defendant's conductor and two brakemen labored alone from 1 o'clock in the morning until daylight to get the cattle unloaded, and that the damage to the cattle at Strong City chiefly resulted from the failure of the plaintiff and these caretakers to assist properly in loading and unloading and their failure to assist in feeding or watering them.

The main question in this case is the extent and legal effect of the negligence of the manager of the plaintiff, who accompanied and had charge of this stock during its transportation, and three other caretakers, who accompanied the cattle. These facts were conclusively established by the admissions of the manager and the caretakers and by proof. The cattle were emaciated and weak, and were shipped largely because there was such a drought in the Southwest that it was thought necessary to sacrifice the weak to avoid...