Bartelt v. Oregon R. & Nav. Co.

• Citation: 57 Wash. 16,106 P. 487
• Court: United States State Supreme Court of Washington
• Decision Date: 17 January 1910
• Parties: BARTELT v. OREGON R. & NAVIGATION CO.

106 P. 487

57 Wash. 16

BARTELT v. OREGON R. & NAVIGATION CO.

Supreme Court of Washington

January 17, 1910

Department 1. Appeal from Superior Court, Spokane County; Henry v Kennan, Judge.

Action by Herman Bartelt against the Oregon Railroad & Navigation Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. W. Cotton, W. A. Robbins, and Samuel R. Stern for appellant.

Jno. L Dirks, for respondent.

GOSE J.

This is a suit to recover damages from a common carrier for injuries to live stock resulting from its alleged negligence. The dereliction charged is that the appellant, in violation of its duty as a common carrier, so negligently and carelessly operated its cars that certain brood mares were bruised, injured, and maimed, while being transported over its road in the month of November, 1907. The appellant joined issue upon the charge of negligence, and alleged affirmatively that it transported two car loads of vicious, wild, and unruly horses for the respondent, from Huntington, Or., to Fairfield, Wash., upon the terms of a limited-liability live stock contract, and at a reduced rate; the material stipulations of the contract being: 'In consideration of the special reduced rate herein provided for the transportation of the live stock above described, it is hereby stipulated and agreed as follows: (1) * * * (2) * * * (3) The shipper agrees to load, unload and reload all said stock at his own expense and risk, and to feed, water and tend the same at his own expense and risk while it is in any stockyards, whether the same be operated, owned, or controlled by said carriers, or otherwise, and while in the cars or at feeding points or at any place where the same may be unloaded for any purpose whatever. (4) The shipper assumes * * * all risk of injury which said live stock or any of them may receive in consequence of any of them being wild, unruly, weak, maiming each other, or themselves by or in consequence of heat or suffocation or any other ill effects of being crowded or injured. * * * (7) No carrier shall be liable for any loss or damage to said stock by causes beyond its control. * * *' The reply denied that the horses were wild, vicious, or unruly, and denied that they were carried at a reduced rate. Upon the issues thus joined the case was submitted to a jury, resulting in a verdict and judgment for the plaintiff, from which the defendant has appealed.

It is first urged that there is no evidence tending to show that the horses were injured through the appellant's negligence while in transit, and that the cause of the injury is speculative and conjectural. The respondent's agent accompanied the horses, and the burden was therefore on the respondent to prove that the injury occurred through the negligence of the appellant, and that it did not arise from a failure upon his part to perform the duties assumed by him in the contract of shipment. The obligation which he assumed, to load, unload, and water the stock, and to care for them while in the stockyards, was legal and binding upon him. The appellant could not, however, exempt itself from liability for any negligent act in transporting the horses, nor did it undertake to do so. These propositions are well settled. Lewis v. Penn. Ry. Co., 70 N. J. Law, 132, 56 A. 128; Terre Haute, etc., Ry. Co. v. Sherwood, 132 Ind. 129, 31 N.E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239; Penn. Ry. Co. v. Raiordon, 119 Pa. 577, 13 A. 324, 4 Am. St. Rep. 670; Normile v. Oregon Navigation Co., 41 Or. 181, 69 P. 928; B. & O. S. Ry. Co. v. Ragsdale, 14 Ind.App. 406, 42 N.E. 1106; 5 Am. & Eng. Enc. Law (2d Ed.) 308; Hance v. Pacific Express Co., 66 Mo.App. 486; St. Louis, etc., Ry. Co. v. Wells, 81 Ark. 469, 99 S.W. 534; Peterson v. Chicago, etc., Ry. Co., 19 S.D. 122, 102 N.W. 595. The court's instructions were in harmony with this view of the law. In holding that the burden is on the respondent to prove that the injury resulted from the negligence of the appellant, we do not intend to modify the rule expressed in Jolliffe v. N. P. R. Co., 52 Wash. 433, 100 P. 977, where the injury to the live stock resulted from an unusual delay in the shipment on the part of the carrier, when the cause of the delay was known to the carrier and unknown to the shipper.

Respecting the sufficiency of the evidence to support the verdict on the question of the negligence of the appellant, the admitted facts are: That the appellant received from the respondent at Huntington, Or., for shipment to Fairfield, Wash., two car loads of horses, consisting of 45 young, grade Percheron mares, and two saddle horses; that there were 24 head in one car and 23 head in the other; that from Umatilla to Riparia the train comprised 1 engine, 50 loaded cars, 14 empty cars and a caboose; that when the horses were taken from the cars at Fairfield one had a dislocated shoulder, another a dislocated hip, another a mashed foot, and three of the mares had slipped their foals. Evidence was submitted to the jury which tended to show that the horses were properly loaded; that the number placed in each car, considering the size of the horses, was consistent with prudent handling; that the horses were unloaded and fed at Umatilla and reloaded in good condition; that after leaving that point, along the Snake river, the cars were chugged and jammed, as a witness expresses it, 'most all the way along;' that the attendant inquired of the conductor the cause of the rough handling of the cars, and the latter informed him that the engine was overloaded, that it had too many cars, causing the engine to slip and the cars to jerk; that at Riparia the train was switched about the yards and jammed against other cars, for a period of about two hours, and until the attendant complained of the switching and jamming to the yardmaster, and demanded that the cars with the horses should be set out; that they were then placed upon a switch and permitted unattended to run against other cars, with such force that two of the horses were thrown to the floor of the car. The appellant argues, however, that the mares were wild, range-raised, and heavy in foal, and that the injuries were occasioned by their natural propensities. There was evidence tending to show that the mares were barn and pasture raised and gentle, although some of them were unbroken; that the line of the Southern Pacific railroad extended along one side of...