Burnside & C.R. Ry. Co. v. Tupman

• Decision Date: 19 March 1903
• Parties: BURNSIDE & C. R. RY. CO. v. TUPMAN.
• Court: Kentucky Court of Appeals

72 S.W. 786

BURNSIDE & C. R. RY. CO. v. TUPMAN.

Court of Appeals of Kentucky.

March 19, 1903

Appeal from Circuit Court, Pulaski County.

"Not to be officially reported."

Action by Benj. F. Tupman against the Burnside & Cumberland River Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

O. H Waddle, for appellant.

Denton & Robinson, for appellee.

BURNAM C.J.

On the 7th day of December, 1898, the appellant, the Burnside &amp Cumberland River Railway Company, contracted with the appellee, B. F. Tupman, to transport a car load of mules and horses from Burnside Landing to Burnside Junction, both points being on its own line of road, and, as the agent of the shipper, to forward it to him at Shelman, Ga., in consideration of $107.50.

On the 18th of May, 1901, Tupman instituted this suit against the railway company, in which he alleges that, at the time of the shipment, the mules and horses were put into a defective car to which he objected, but that the agent of the defendant assured him that it was sufficient, and guarantied it to be all right, and that, relying upon these representations and guaranty, he consented that his stock might be shipped therein; that, by reason of the defective condition of this car, one of his mules had his hip broken, and was rendered worthless, and that a number of others were so crippled, cut gashed, maimed, and disfigured as to greatly depreciate their salable value; that all of the injury was caused by the defective car and the negligence of the defendant; and asked a judgment for $300 in damages. The answer of the defendant traversed all the affirmative averments of the petition, and denied the alleged representation, and guaranty as to the sufficiency of the car, and pleaded that, under the terms of the contract of shipment, their liability for injuries to stock was confined to such injuries as might be received on their line of road.

The testimony shows that the defendant's road runs from Burnside Landing to Burnside Junction, a point on the Cincinnati Southern Railway, a distance of a little more than a mile. The substance of the testimony for the plaintiff was to the effect that he objected to the car in which the railway company proposed to ship his stock, on the ground that the slats were too far apart, and that it was otherwise defective; that he pointed out these defects to the agent of the company, who assured him that the car was all right, and said that they would guaranty that his...