Atkinson v. Wabash Railroad Co.

• Decision Date: 07 November 1895
• Docket Number: 17,370
• Citation: 41 N.E. 947,143 Ind. 501
• Parties: Atkinson v. Wabash Railroad Company
• Court: Indiana Supreme Court

41 N.E. 947

143 Ind. 501

Atkinson v. Wabash Railroad Company

No. 17,370

Supreme Court of Indiana

November 7, 1895

Petition for Rehearing Overruled January 28, 1896.

From the Miami Circuit Court.

Judgment is reversed and the cause remanded to the lower court with instructions to overrule the motion to strike out and for further proceedings in accordance with this opinion.

Antrim & Tillett and H. C. Pettit, for appellant.

Stuart Bros. & Hammond and R. P. Effinger, for appellee.

OPINION

Jordan, J.

Action by appellant against the appellee to recover damages in the sum of ten thousand dollars, arising out of the alleged negligence of the latter in the shipment of certain fine blooded horses from Wabash to LaPorte, Indiana.

The only question properly presented by appellant for our consideration is that based upon the action of the court in sustaining a motion to strike out certain portions of the amended complaint. The complaint is in two paragraphs, which so far as our observation goes, with possibly a slight variation, are substantially alike. The second paragraph omitting the part wherein it is alleged that the defendant is a corporation and a common carrier for hire, etc., is as follows:

"That on the 12th day of April, 1892, and for six months thereafter, and ever since, plaintiff has been the owner of ten animals of the horse kind, of blooded pedigree, and on said day of the value of ten thousand dollars, and at the time of the happening of the grievance hereinafter complained of, in sound and perfect condition of health, and free from defect and disease; that during the month of April, 1892, and for a long time prior thereto, defendant was operating a train, scheduled and advertised to the public desiring to ship goods and horses from Wabash, Indiana, by Peru to LaPorte, Indiana, to leave Wabash daily at 5 A. M and to arrive at LaPorte daily at 4 P. M.; that said animals were young and tender for racing purposes, and accustomed to the best of care, shelter, and food, and susceptible to cold and unable to withstand rough usage or exposure to inclement or wintry weather; that defendant on said day had full knowledge of said matters; that the usual and ordinary time for shipment of goods by said route from Wabash to LaPorte requires ten hours and no more, as per defendant's schedule.

"Plaintiff says that on said day defendant agreed with plaintiff, in consideration of the sum of thirty-one dollars then asked by defendant and paid by plaintiff as tariff in full for said services, to safely ship and transport said animals for plaintiff without delay, from said Wabash to LaPorte, and there deliver them to him in good condition; that plaintiff executed said contract by and in the name of 'L. L Daugherty'; that a copy of said contract marked 'A' is filed herewith and made a part hereof; that besides and in addition to said horses there were three colts, which plaintiff desired to ship from said Wabash to said LaPorte with said horses, and defendant permitted plaintiff to ship said colts in the same car with said horses without extra charge; that plaintiff did ship said colts in the same car with said horses and they were safely delivered at LaPorte without damage from said shipment or exposure, or any other cause; that in pursuance to said contract, plaintiff delivered said ten animals to defendant in a good and sound condition of health, at 10 P. M. of April 12, 1892, for such shipment; that defendant operated his train on schedule time on the 13th and 14th days of April, 1892, and had at all times on said days the means and ability to transport said animals to said LaPorte within twelve hours after 5 A. M., April 13, 1892, and could and should, and it was his duty to have done so, and there was nothing to prevent the same being done. But plaintiff avers that said defendant with full knowledge and ability so to do, and with a knowledge of the premises, carelessly and negligently failed, omitted, forgot, and refused to take said animals and said car so loaded and ready for shipment, and standing upon defendant's side track at said Wabash at 5 A. M. of said April 13th, and with full knowledge that the same was waiting, but operated its said train through and from said Wabash to LaPorte, departing and arriving on its scheduled time; that said animals were so loaded for shipment at the instruction of defendant, and from the time of said loading until they were unloaded at LaPorte, as hereinafter set out, they were under the control and management of defendant; that said loading for shipment was completed at 10 A. M. of April 12, 1892, and said car delivered by plaintiff and accepted by defendant in pursuance of said contract at said time; that defendant failed and refused to comply with his part of the contract in this, to-wit: That without cause, and having then and there a train and facilities for shipping said car so that the same could and should have been in LaPorte by 2 P M. of April 13th, said defendant negligently, carelessly and wrongfully failed, refused, permitted and caused said car and animals to remain en route for the term of time of forty-eight hours, and did not get said car to LaPorte until 6 P. M. of April 14th; that from the time of first loading said animals, until midnight of April 13th, the weather was warm and pleasant, and during remainder of said time, it became cold, stormy and wet, and rain, snow, sleet and hail fell in large quantities, and the atmosphere became very cutting and bitterly cold, and strong winds prevailed, by reason whereof, and by reason of the said negligence, unnecessary delay, fault and carelessness of defendant as aforesaid, wholly and without fault, want of care or negligence on the part of plaintiff whatsoever, during the operation of said contract and while wholly in defendant's care, said animals were exposed and caught cold and became sickly and diseased, and as a result thereof immediately became, and have ever since remained injured, damaged, valueless and worthless in the market, and their health permanently injured and destroyed, a more specific statement of which sickness plaintiff cannot give for want of knowledge; that during said time, under instructions of defendant, plaintiff was compelled to, and did unload said animals in said storm; that after the departure of said train at 5 A. M., April 13, 1892, defendant notified plaintiff that it would not take out said car and animals until that hour of the 14th, and plaintiff was compelled to, and did, unload and distribute said animals about and boarded them in stables in Wabash, and to reload them at night, for which he was compelled to, and did, pay the sum of fifty dollars; that plaintiff could not return said animals to his own stables or leave them in Wabash, or in said car at LaPorte without more danger and...