Black v. Chicago, B. & Q. R. Co.
| Decision Date | 16 September 1890 |
| Citation | 46 N.W. 428,30 Neb. 197 |
| Parties | BLACK ET AL. v. CHICAGO, B. & Q. R. CO |
| Court | Nebraska Supreme Court |
ERROR to the district court for Kearney county. Tried below before GASLIN, J.
AFFIRMED.
L. W Hague, and Stewart & Rose, for plaintiffs in error, cited A. & N. R. Co. v. Washburn, 5 Neb. 122; Kinnick v. R. Co., 29 N.W. [Ia.], 772; Lindsley v. R Co., 33 N.W. [Minn.], 7; Wilson v. Hamilton, 4 Ohio St. 722; K. P. R. Co. v. Nichols, 9 Kan. 235; St. L. & S. R. Co. v. Dormon, 72 Ill. 504; Agnew v. Costa, 27 Cal. 425; Clark v. R. Co., 4 Kernan [N. Y.], 570; Maslin v. R. Co., 14 W.Va. 180; Angell, Carriers [5th Ed.], sec. 214; Lawson, Contracts of Carriers, sec. 16.
Marquett & Deweese, and J. L. McPheely, contra, cited: Parrish v. State, 14 Neb. 60; 1 Am. and Eng. Ency. of Law, 174, 177; Phil., etc., R. Co. v. Anderson, [6 Am. & Eng. R. Cases, 407] 94 Pa. 351; R. V. R. Co. v. Fink, 18 Neb. 93; Gleeson v. Va. M. R. Co., 28 Am. and Eng. R. Cases, 202; Balt., etc., R. Co. v. Sulphur Springs, etc., Dist., 96 Pa. 65; Nugent v. Smith, L. R. 1 C.P.D. 19, 423.
On the 16th day of November, 1886, the plaintiffs delivered to the defendant at Minden, in this state, 136 hogs to transport to Omaha. On account of a severe wind and snow storm, the train on which the hogs were being shipped, was blockaded at Hastings for more than a day. When the cars arrived in Omaha, sixteen of the hogs were dead. Plaintiffs brought suit to recover the sum of $ 126.62 as their damages sustained. The defendant, in its answer, admits the receipt of the hogs, the loss of sixteen, and the value thereof as claimed by the plaintiffs. The answer also alleges "that after said hogs were received for shipment, and while in transit, there occurred a very severe, unusual, and extraordinary snow storm, on account of which it was impossible for the defendant to move its cars, and make said shipment as promptly as it ordinarily would, and said hogs were conveyed to Omaha in the shortest possible time; that whatever damage the plaintiffs sustained, on account of the injury to the said hogs, and the death of the same, was caused on account of said storm and extreme cold weather." The answer also denies that the defendant was guilty of any negligence in the matter. The trial was had to a jury, resulting in a verdict for the company. The case is now before us on error.
The testimony discloses that it was storming when the hogs were started from Minden on the morning of the 16th of November, that they arrived in Hastings between ten or eleven o'clock the same forenoon, and at that time the snow was drifting, and the wind blowing a gale. The train was immediately made up to go east, when advices were received that the road was blockaded, and the train was abandoned. The hogs remained in the cars until the next forenoon, when they were unloaded, and it was discovered that eleven were dead and six crippled.
The principal question presented by the record for our consideration is, Did the defendant's employes exercise such diligence as to relieve the company from liability for damages as a common carrier? There is no conflict in the testimony as to the character and severity of the storm, or as to the efforts that were made to protect the hogs from the effects of the storm. J. K. Painter, who was agent of the company at Hastings, testified that the train carrying plaintiffs hogs arrived at Hastings during a blizzard, the wind was blowing a gale and the snow was falling; that the train was made up to go east, and waited for advices as to how the storm was along the road. The train was then reorganized with a less number of cars, when orders were received to wait until afternoon. Then they got advices not to start a train out that day. The train was abandoned on account of the severity of the storm, the road cast of Hastings being blockaded. The yards in Hastings at that time were impassable on account of the depth of the snow, and the high wind. Drifts had formed that were difficult for a man to pass through, some as tall as an ordinary sized man. After the train was abandoned, an effort was made to get the cars to the stock yards. The yards being full of snow, an attempt was then made to put grain doors up to the sides of the cars; that was a failure on account of the wind. The next morning the yards were shoveled out, and as soon as possible the cars were taken to the yards and the hogs unloaded, fed, and given bedding. They were kept until the morning of the 18th, when they were forwarded on the first train leaving for the east, after the storm. On the evening of the 16th the stock yards were filled with snow, the fence on the north side was covered up, and the wind was blowing very hard. On the morning of the 17th the yards were in such condition that the switch engine could not reach the cars until they were shoveled out. The witness testified further, on cross-examination, that it began snowing early on the morning of the 16th and continued into the night; that it was very cold; that an effort was made to get the hogs to the stock yards on the 16th; that the switch engine stuck in the yards and remained out all night; that the storm was the most severe the witness had seen during four years he had been with the road.
G. H. Hartsaugh testified that at noon of the 16th there was a "blizzard," and that it continued during the afternoon and evening. It was a very severe storm, snowing very hard, wind from the north and cold towards evening; that he had seen one or two storms in the course of a number of years, just as bad, but had never seen a worse one. It was growing worse all the time.
Albert Gains testified that his business was checking cars and taking care of the stock yards at Hastings; that he remembers the cars containing plaintiff's hogs; that when they arrived it was snowing, blowing, and getting colder; that they were put into a train made up to go east, and it was abandoned on account of the severity of the storm. Nothing was done with the cars containing the hogs that afternoon, for the reason that the snow had drifted too bad. By three o'clock in the afternoon it had drifted underneath the cars solid. He tried to put up grain doors on the north side to keep the wind off, but the wind blew so hard that he failed in the attempt. He says, "the one I had the wind blew it away from me, then I helped another man with his; we got about ten feet further and had to stop; there were four of us trying with the doors." The weather was cold and getting colder. The cars quit moving through the yards and switches about noon of the 16th.
John Glennan testified that it was snowing and blowing hard on the 16th; that the hogs were unloaded on the forenoon of the 17th, and were watered and fed. Before unloading it was necessary to get them out of the drift. Some of the cars were nearly covered, and the stock yards were pretty nearly covered up.
G. M. Rogers testified that the storm was severe and cold; that he tried to carry grain doors and tack them on north side of the cars, but could not possibly do so as the wind was so strong; that at noon the snow in the yards was deep and getting deeper.
George Jacobs testified that on the 16th it was impossible to see a house an either side of the street on account of the snow and wind. Witness states that he saw four persons trying to carry the grain doors to the cars, and that they got a few feet with them but could not get any further.
W. G. Melson, called as a witness for the plaintiff, testified that in cold, stormy weather, hogs once put in motion in cars, at the first delay will begin to "pile up" away from the doors, and are likely to smother those underneath; that the proper thing to do when they cannot be unloaded is to put a man there to keep them from piling up; that while the cars are in motion there is no such danger. The witness was then asked this question upon cross-examination: "You would probably been standing there frozen to death covered with snow in the morning, with a stick in your hands?" The witness answered, "I guess so."
The plaintiff Jeppa Jorgenson testified that the hogs were in good condition when delivered to the defendant. The remainder of his testimony was the same as the witness Melson's, except that he did not think he would have been frozen to death had he remained with the hogs and given them the proper care.
That the storm which overtook the train containing plaintiff's hogs was unprecedented cannot be doubted. On account of the drifting snow it was impossible for the train to leave Hastings for Omaha on the afternoon of November 16; that the snow had so drifted as to blockade the cars in the yards at Hastings, and filled the stock pens with snow so that the hogs could not be unloaded. All reasonable efforts were put forth by the employes of the defendant to nail grain doors on the north side of the cars containing the hogs, for the purpose of protecting them from the storm.
It is contended by the plaintiffs that some one should have remained with the hogs and prevented them from smothering each other. It was for the jury to say whether in view of the severity of the storm such care should have been given. After a careful reading of the testimony we are satisfied that there was sufficient evidence to warrant the jury in finding that the defendant was not guilty of negligence in that respect.
Objections are made to certain instructions given by the court on its own motion, and to the refusal to give the instructions requested by the plaintiffs.
The fourth, fifth, and sixth of the instructions given are as follows:
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