Ayres v. Chi. & N. W. Ry. Co.

• Decision Date: 27 March 1888
• Parties: AYRES ET AL. v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

71 Wis. 372

37 N.W. 432

AYRES ET AL.

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from circuit court, Sauk county, ALVA STEWART, Judge.

For former appeal, see 17 N. W. Rep. 400.

This case was here on a question of pleading upon a former appeal. 58 Wis. 537, 17 N. W. Rep. 400. The amended complaint is to the effect that the defendant, the Chicago & Northwestern Railway Company, being a common carrier engaged in the transportation of live-stock, and accustomed to furnish cars for all live-stock offered, was notified by the plaintiffs, Volney Ayers and George Hagenah, on or about October 13, 1882, to have four such cars for the transportation of cattle, hogs, and sheep at its station at La Valle, and three at its station at Reedsburg, ready for loading, on Tuesday morning, October 17, 1882, for transportation to Chicago; that the defendant neglected and refused to provide such cars at either of said stations for four days, notwithstanding it was able and might reasonably have done so; and also neglected and refused to carry said stock to Chicago with reasonable diligence, so that they arrived there four days later than they otherwise would have done; whereby the plaintiffs suffered loss and damage, by decrease in price and otherwise, $1,700. The answer, in effect, admitted the defendant's incorporation with the privileges alleged; “that it was at times engaged in the transportation over its roads of live-stock, when and if it was able to do so, and was accustomed to furnish suitable cars therefor upon reasonable notice, when within its power to do so; and to receive, transport, and deliver such livestock with reasonable dispatch, but only upon special contracts at the time entered into between the shipper and this defendant, and upon such terms and conditions as should be agreed upon in writing; that one of the lines of this defendant railway is located as in said amended complaint stated.” The answer also, in effect, alleged that “within a reasonable time, and as soon as it reasonably could, and as soon as it was within its power to do so,” after the application of the plaintiffs for such cars, the defendant “forwarded four suitable and empty cars to La Valle,” and “three suitable and empty cars to Reedsburg,” which cars were severally forwarded with reasonable dispatch, and arrived in due course, and as soon as they could with reasonable dispatch be forwarded over its line; that at the times of such respective shipments the plaintiffs entered into an agreement in writing with the defendant for the transportation of said stock at special rates, and in consideration thereof it was agreed that the defendant should not be liable for loss from the delay of trains not caused by the defendant's negligence. At the close of the trial the jury returned a special verdict to the effect (1) that at the times named the plaintiffs were copartners at Reedsburg, engaged in buying and shipping livestock to the Chicago market for sale; (2) that at the times stated the defendant was a common carrier, and as such, engaged in the transportation of live-stock, and accustomed to furnish cars for, and transport all live-stock offered for, that purpose; (3) that one of its lines run from La Valle and Reedsburg to Chicago; (4) that October 13, 1882, the plaintiffs, being fully apprised of the state of the Chicago market for live-stock and prices, proceeded to buy therefor seven car-loads of cattle, hogs, and sheep, four to be loaded at La Valle and three at Reedsburg; (5, 6, 7, 8, 9, 10, and 14) that the plaintiffs notified the defendant's agents, at the respective stations, October 13, 1882, to have such cars in readiness at such stations, respectively, October 17, 1882, and that such notices were reasonable, and such agents promised to order the cars and have them in readiness at the time; (11) that two cars were furnished at Reedsburg, October 17, 1882, and one October 19, 1882; (12) that the four were furnished at La Valle, October 19, 1882; (13) that the defendant furnished two as soon as it reasonably could, but five it did not; (15) that the plaintiffs received no notice before October 17, 1882, that the cars would not be furnished as ordered; (16, 17, and 18) that prior to that time, and with the expectation that the cars would be on hand as ordered, the plaintiffs had bought sufficient stock to load said several cars, and had the same at said respective stations on the morning of October 17, 1882; (19) that the defendant, being able to furnish such cars, disregarded its duty as a common carrier of live-stock in not having the same on hand when ordered; (20) that, had the cars been so furnished, they would have arrived at Chicago on the morning of October 18, 1882; (21) as it was, two arrived there on Thursday, October 19, 1882, A. M., and five on Friday, October 20, 1882, at 5:45 P. M.; (22, 23, and 24) that the market value of hogs in Chicago, on Friday, October 20, was $7.36 per hundred, on Saturday, October 21, was $7.11, and on Monday, October 23, $6.81; (25, 26, and 27) that the loss on the hogs, by reason of depreciation of the market, was $140.08; that the total damages of the plaintiffs on all the stock was assessed at $825.97, made up of the following items, to-wit: Taking care of and feeding stock, $50; skrinkage on hogs, cattle, and sheep, $408.35; depreciation in value on hogs and sheep, $172.58; and interest on the above sums until the rendition of the verdict, $195.04. The defendant thereupon moved for judgment in its favor upon the verdict and record, which was denied. Thereupon the defendant moved to set aside the verdict, and for a new trial, upon the grounds that the verdict is against the weight of the evidence, and for errors of the court in its charge to the jury, and in its rulings on the trial, and because the damages were excessive, and contrary to the proofs, which motion was denied. Thereupon, and upon the motion of the plaintiffs, judgment was ordered in their favor on the special verdict for $825.97 damages and costs. From the judgment entered thereon, accordingly, the defendant brings this appeal.Jenkins, Winkler & Smith, for appellant.

G. Stevens, for respondents.

CASSODAY, J., ( after stating the facts.)

There is no finding of any agreement on the part of the defendant to have the cars in readiness at the station, on Tuesday morning, October 17, 1882. There is no testimony to support such a finding. One of the plaintiffs testified, in effect, that he told the agent that he would want the cars on the morning of the day named; that the agent took down the order, put it on his book, and said, “All right,” he would try and get them; but that they were short because they were then using more cars for other purposes; that nothing more was said. It appears in the case that the cars were in fact furnished. It also appears that, as the shipments were made, special written contracts therefor were entered into between the parties, whereby it was, in effect, agreed and understood that the plaintiffs should load, feed, water, and take care of such stock, at their own expense and risk, and that they would assume all risk of injury or damage that the animals might do to themselves, or each other, or which might arise by delay of trains; that the defendants should not be liable for loss by jumping from the cars, or delay of trains not caused by the defendant's negligence. The court, in effect, charged the jury that there was no evidence of any negligence on the part of the defendant, causing delay in any train after shipment, and hence that the delay of the two cars admitted to have been furnished in time was not before them for consideration. This relieves the case from all liability on contract. It also narrows the case to the defendant's liability for the delay of two days in furnishing the five cars at the station named, as ordered by the plaintiffs, and in the absence of any contract to do so. In Richardson v. Railway Co., 61 Wis. 601, 21 N. W. Rep. 49, 18 Amer. & Eng. R. Cas. 530, it was, in effect, held competent for a railroad company engaged in the business of transporting live-stock, to exempt itself by express contract “from damage caused wholly or perhaps in part, by the instincts, habits, propensities, wants, necessities, vices, or locomotion of such animals.” And it was then said: “Since the...