Berry v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 26 January 1910 |
| Citation | 124 N.W. 859,24 S.D. 611 |
| Parties | BERRY et al. v. CHICAGO, M. & ST. P. RY. CO. |
| Court | South Dakota Supreme Court |
Appealed from Circuit Court, Davison County.
Action by A. C. Berry and another against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals. Affirmed.
Preston & Hannett and Charles E. Vroman, for appellant.
A. E Hitchcock, for respondents.
The plaintiffs, who are purchasers and shippers of live stock delivered to defendant as a common carrier three car loads of horses to be transported by railroad to Chicago, Ill., and there delivered to J. S. Cooper, at the United States stockyards. Two car loads of said horses were delivered to defendant at Tripp, S. D., January 4, 1907, and the other car was delivered at Plankinton, S. D., on March 15th, the same year. The plaintiff claims that in the transportation and carriage of said horses the defendant so carelessly and negligently transported the same that by reason thereof said horses became bruised, maimed, and otherwise injured; that said negligence consisted in unnecessary and unreasonable delay, and unreasonable and unnecessary unloading and reloading thereof; that from the time the two car loads shipped from Tripp were reloaded at Mitchell, S. D., at 2 o'clock p. m., January 5th, until 3 o'clock p. m January 7th, when they arrived at Chicago, said horses were not unloaded from said cars in which they were loaded, and were not given any water, feed, or other care; that at Mitchell, by direction of defendant, the said horses were unreasonably and unnecessarily unloaded and reloaded, some of them on two different occasions, and during which the weather was inclement, and the chutes icy and dangerous to use, and that by reason of such unnecessary and unreasonable unloading and reloading over such icy and dangerous chutes many of said horses became lame and otherwise injured; that in the transportation of said horses they were by direction of defendant put into unsound and unfit cars, that the timber along the side of one car became broken, and the ragged edges thereof caused injury and damage by bruising and cutting the legs of many of said horses; that by reason of the keeping of said horses in the said cars for such unreasonable length of time without food, water, or other care caused them to become nervous, uneasy, and vicious, thereby causing them to kick, bite, and otherwise injure themselves; that when said horses were delivered to defendant they were sound, and had been purchased for the purpose of sale on the Chicago market; that by reason of defendant's said negligence they became bruised, maimed, and otherwise injured and damaged, all to the damage of plaintiff in the sum of $687.50; and that within 30 days after the occurrence of such damage the plaintiff duly presented to defendant a claim in writing for the said damage to said horses, and that said damage was not due to any act or default or negligence on the part of plaintiff. Defendant denied the negligence complained of, and alleged that said horses were shipped by defendant under and by virtue of the terms of a written contract, and not otherwise; that said contract contained the condition that the defendant, for loss, injury, or damage for which it may be responsible, shall be liable to the extent only of the agreed valuation upon which the rate of compensation for such transportation is based, and that by such contract the value of only $100 each was placed on said horses; that said contract further provided that defendant should not be liable as an insurer of said horses transported under said contract; that the company, defendant, should not be liable for the acts of the animals to themselves or to each other, such as biting, kicking, etc., nor for the loss or damage arising from the condition of the animals, nor from their jumping from the cars, nor from loading or unloading; that the defendant should not be liable for the injury or damage of said stock by or on account of the delay thereof during its transportation, and it does not agree to deliver said stock at destination at any specific time; that the shipper, the plaintiff, had examined the cars in which said live stock was loaded, and has accepted the same as being in proper condition for the transportation thereof; that no claim for loss, injury, or damage to said live stock, nor for delay or decline in the market, nor for injury to the owner or person in charge thereof, shall be valid unless presented to the company in writing within 30 days after the same shall have occurred. The defendant alleged that if there was any delay or injury thereby in the transportation of said horses, the plaintiff was not entitled to recover therefor by reason of the terms of said contract; that plaintiff cannot recover for the injury caused by the biting or kicking of said horses, by reason of their vicious and unruly habits, by reason of the terms of said contract; that the plaintiff by the terms of said contract examined the cars in which said horses were shipped, and accepted the same as being in proper condition for the transportation thereof, and cannot recover for such injury on that account; that no claim in writing for damage to said horses, nor for delay, nor for decline in market, was presented to this defendant within 30 days after the alleged injury or damage occurred; and that by reason of said failure the plaintiff cannot recover. The case was tried to a jury, and a verdict for $525 rendered in favor of plaintiff, and judgment thereafter entered. Motion for new trial was made and overruled, and the defendant now brings the question to this court, assigning various errors.
The first eight assignments of error relate to the sufficiency of the evidence to sustain the verdict. It will serve no useful purpose to herein recite all the evidence. We have reviewed the entire testimony, and are of the opinion that the evidence was sufficient to sustain the verdict. There is much conflict in the evidence on many salient points, all of which have been resolved in favor of the plaintiffs by the verdict of the jury. Under the statute of this state a common carrier cannot be exonerated by any agreement or contract, made in anticipation thereof, for gross negligence of himself or his servants. Civ. Code, § 1583. The question of gross negligence under this statute was submitted to the jury under proper instructions. The evidence tends to show many delays on the part of defendant in the transportation of said stock, and that these horses were kept confined in the cars for something like 48 hours at one time without food or water; and the evidence tends to show broken slats and timbers on the side of a car, and that such slats and timbers were rotten and decayed and covered over with paint, and all of which plaintiff claims injured many of said horses physically. Whether or not such delays and breakages were the result of gross negligence, under the circumstances of this case, was a question for the jury, as different conclusions might be drawn therefrom, and the verdict of a jury, under such conditions, is conclusive.
It is insisted by defendant that the evidence fails to establish the true and correct measure of damages, in that, it shows what the horses sold for sound, and what they were resold for, and this does not show how much less the animals would have sold for on the Chicago market at the time when received there by reason of their alleged damaged condition. Plaintiff A. C. Berry testified that he had been buying and selling horses for 20 years-about 400 to 500 yearly-and had shipped mostly to Chicago, that all these horses were sound when delivered to defendant, and that when received at Chicago they were gaunt, drawn, bruised, lame, and cut up. He testified what these horses, individually and separately would have sold for if sound, and what they did sell for in their damaged condition; that after receiving them at Chicago he took good care of them, employing veterinary surgeons to treat and care for them, and that he was about two weeks in disposing of them. We are of the opinion that what these horses would have sold for on the horse market, and what they did sell for on the horse market at Chicago, at the time referred to in the...
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