Bowers v. Chi., B. & Q. R. Co.
| Citation | 135 N.W. 1017,91 Neb. 229 |
| Decision Date | 20 April 1912 |
| Docket Number | No. 16,678.,16,678. |
| Court | Supreme Court of Nebraska |
| Parties | BOWERS v. CHICAGO, B. & Q. R. CO. |
Where a plaintiff pleads and relies upon one or more specific acts or omissions as negligence, which are denied by the defendant, and the petition contains no general allegation of negligence, the burden of proof is upon the plaintiff to establish the affirmative of that issue, and evidence of other acts of negligence may properly be excluded, and it is not error to so instruct the jury.
One not an owner of and not beneficially interested in an animal alleged to have been injured by the negligence of another, and who has no assignment of the owner's right of action, cannot recover for such injury, and an instruction to that effect is proper.
A party, in order to predicate error on a failure of the court to instruct the jury with reference to his theory of the case, must tender an instruction on such theory.
Evidence examined, and found sufficient to sustain the verdict.
Appeal from District Court, Cass County; Travis, Judge.
Action by Lorence Bowers against the Chicago, Burlington & Quincy Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.Matthew Gering, for appellant.
Byron Clark, James E. Kelby, H. F. Rose, and William A. Robertson, for appellee.
Action in the district court of Cass county for damages to plaintiff's live stock and household furniture alleged to have been sustained by defendant's negligence as a common carrier in transporting the property from Spencer, in Boyd county, to Cedar Creek, in Cass county, Neb. The defendant had the verdict and judgment, and the plaintiff has appealed.
It appears that the plaintiff chartered a box car of the Chicago & Northwestern Railroad Company at Spencer, in which he placed his live stock, consisting of a stallion, a gelding, a pony, one cow, about 75 chickens, and some household furniture and routed the car to Omaha, and thence over defendant's railroad to Cedar Creek; that he was furnished transportation for one person to ride in the car as a caretaker, and his son assumed that duty under the contract of shipment. It also appears, without dispute, that the caretaker rode in the way car, and paid no attention to the shipment until it arrived at Omaha. There is a conflict of evidence as to whether the son rode in the car and cared for the shipment from that point to Cedar Creek, or whether he rode in a passenger coach attached to the train in which the box car was placed. It was alleged in the petition: “Said defendant did not safely carry and deliver said horses, pony, cow, cupboard, chairs, chickens, and other personal property, as it had undertaken to do; but, on the contrary, conducted itself so carelessly in and about carrying and transporting the same that at its switchyards in the city of Plattsmouth, Nebraska, the defendant, its agents and servants, well knowing the contents of said car, carelessly and negligently pushed, switched, and propelled said car with unnecessary and unusual violence against other cars, and so carelessly and negligently operated its locomotive, cars, and train that the said horses, pony, cow, and other property herein described were violently thrown upon and against said car and each other, so that, in consequence of said negligence, said Percheron stallion received injuries of which he died on the 22d day of March, 1909, and the other horse and pony injured and bruised, one dozen chickens killed, the cupboard, chairs, rocking chair, and other household furniture injured, to the damage of the plaintiff in the sum of eleven hundred eighty-six ($1,186) dollars,” for which the plaintiff prayed judgment. This statement was denied by the answer. The petition contained no other allegation of negligence or damage whatsoever. It was shown by the evidence that, shortly after the shipment arrived at Cedar Creek, the stallion showed signs of distress and illness, from which he afterwards died. There was some evidence tending to show that the other horses and the cow were bruised to some extent, that some of the chickens died, and that the furniture was also scratched and damaged. The caretaker testified that up to the time the car reached Plattsmouth all of the shipment was uninjured, and the live stock was in good condition. He also testified that while the car was in the yards at that place it was so roughly handled that the horses and cow were thrown down, and the furniture was damaged to some extent. His last statement was flatly contradicted by the defendant's witnesses, and the jury, by their verdict, resolved that question against the plaintiff. The record also contains evidence from which the jury might reasonably have concluded that the illness and death of the stallion was caused by confinement in the car, lack of feed and water, and want of proper attention on the part of the caretaker.
[1] It is plaintiff's contention that the district...
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