Bowers v. Chicago, Burlington & Quincy Railroad Company
| Decision Date | 20 April 1912 |
| Docket Number | 16,678 |
| Citation | 135 N.W. 1017,91 Neb. 229 |
| Parties | LORENCE BOWERS, APPELLANT, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Cass county: HARVEY D. TRAVIS JUDGE. Affirmed.
AFFIRMED.
Matthew Gering, for appellant.
Byron Clark and William A. Robertson, contra.
Action in the district court for 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, Nebraska. 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 switch yards 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 $ 1,186," 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.
It is plaintiff's contention that the district court erred in giving the jury paragraphs 3, 9, 13 and 14 of the instructions given on his own motion. The first three instructions complained of were alike in substance, and may be summarized by quoting paragraph 9, of which complaint is made. That instruction reads as follows: "You are instructed that the plaintiff must show by a preponderance of the evidence, before he can recover, that the proximate cause of the death of the plaintiff's stallion and the damage to the other property in the car, if any there was, was the careless and negligent manner in which the defendant's agents and servants switched and...
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