Campbell v. Los Angeles & S.L.R. Co.

• Decision Date: 14 January 1928
• Docket Number: 4577
• Citation: 71 Utah 173,263 P. 495
• Parties: CAMPBELL v. LOS ANGELES & S. L. R. CO
• Court: Utah Supreme Court

263 P. 495

71 Utah 173

CAMPBELL v. LOS ANGELES & S. L. R. CO

No. 4577

Supreme Court of Utah

January 14, 1928

Appeal from District Court, Second District, Weber County; George S Barker, Judge.

Action by Charles W. Campbell against the Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

George H. Smith, J. V. Lyle, R. B. Porter, and Dana T. Smith, all of Salt Lake City, for appellant.

James E. Rait, of Omaha, Neb., and Woolley & Holther, of Ogden, for respondent.

HANSEN J. THURMAN C. J., and CHERRY, STRAUP, and GIDEON, JJ concur.

OPINION

HANSEN, J.

In this action the plaintiff recovered a judgment against the defendant for injury to 24 carloads of cattle. The defendant prosecutes this appeal from the judgment.

In December, 1924, the Clayton-Murnan Livestock Company, plaintiff's assignor, shipped 1253 head of cattle from Ogden, Utah, to Los Angeles, Cal. The cattle were taken by the Oregon Short Line Railroad Company from Ogden, Utah, to Salt Lake City, Utah, and were then transferred over the railroad of the defendant Los Angeles & Salt Lake Railroad Company to their destination at Los Angeles, Cal. The cattle were taken to Las Vegas, Nev., in two separate shipments. The first shipment, consisting of 28 carloads, left Ogden December 9th, and arrived at Las Vegas on the following day. The second shipment, consisting of 11 carloads, left Ogden December 10th, and arrived at Las Vegas, December 12th. On the morning of December 11th, 15 carloads of the first shipment went out of Las Vegas for Los Angeles. At the request of the shipper, and with the consent of the defendant railroad company, the remaining 24 carloads of cattle were held in the stockyards at Las Vegas to await the order of the shipper as to when they should be sent on to Los Angeles. The stockyards where the cattle were so held are maintained for the accommodation of shippers of live stock over the defendant's railroad. When the cattle were unloaded at the Las Vegas stockyards, each carload was placed in a pen and kept separate from the other cattle. On the morning of December 13th John M. Heaton, freight agent of the company, learned that 90 carloads of cattle were coming from Ogden, and would arrive at Las Vegas some time in the afternoon or evening of that day. It was therefore necessary for the defendant railroad company to make provision for unloading these additional carloads of cattle at Las Vegas so they could receive feed, water, and rest for at least five hours before proceeding on to Los Angeles. John M. Heaton, in addition to being freight agent for defendant railroad company at the time the cattle were shipped by plaintiff's assignor, was also its yardmaster at Las Vegas. There is some conflict in the evidence as to what occurred with respect to the cattle involved in this action after the information was received that 90 additional carloads of cattle were coming in on the afternoon of December 13th, to be unloaded in the stockyards at Las Vegas.

Alfred Burrell, who was caretaker of the cattle for the shipper, testified that in the forenoon of December 13th, John M. Heaton, freight agent and yardmaster of the defendant railroad company, informed him that 90 carloads of cattle were coming in on that day, and were to be unloaded in the stockyards at Las Vegas; that Heaton asked Burrell if the cattle in his charge could be bunched, that is, a number of carloads put into one pen; that Burrell suggested to Heaton that a part of the 90 carloads of cattle that were coming in might be unloaded at Caliente, to which Heaton replied that the railroad company did not do business that way; that thereupon Burrell stated he would send a telegram to find out if the cattle could be bunched, to which Heaton replied: "By God, we will call the crew right now"; that Heaton then called the switch engine crew, and ordered the cattle loaded into the cars. Burrell further testified he immediately sent a telegram to Charles Clayton advising him of the situation, and at about 3 o'clock in the afternoon received a telegram in reply. The telegram from Clayton was offered and received in evidence, and is as follows:

"Notify railroad not load out cattle or they be liable seventy five pounds shrink and any loss or damage to cattle bunch your cattle which you reasonably can show this to agent.

"Chas. Clayton."

Upon receipt of the telegram from Clayton, according to Burrell's testimony, he showed it to Heaton, and informed him that he had permission to bunch the cattle, to which Heaton replied: "There can't be nothing done with those cattle. Those cattle will stay where they are at. Those cattle we have got them backed up in the yards here, and they will stay there until that train arrives and departs"; that Burrell then requested that, if the cattle could not be held in the stockyards at Las Vegas, they be moved on to Los Angeles.

John M. Heaton, who testified at the trial as a witness for the defendant railroad company, gave a somewhat different version of the conversation between him and Burrell, but, as this is an action at law, the jury is the sole judge of the credibility of the witnesses, and we are precluded from passing upon the weight of the testimony.

The evidence shows without conflict that the cattle were loaded into the cars before 3 o'clock in the afternoon of December 13th, and were kept confined in the cars until after 4 o'clock a. m. of December 14th, except three carloads, which were unloaded either in the afternoon or evening of December 13th because the cattle in these cars were down and being injured. There is evidence from which the jury might well have found that there was ample time to unload the cattle after Burrell received the telegram granting permission to bunch them, and before any of the 90 carloads of cattle arrived at Las Vegas. The evidence also shows that, if the cattle involved in this action had been bunched, the stockyards at Las Vegas were ample to care for them without any interference with the 90 carloads that arrived in the afternoon or evening of December 13th. The evidence also shows that, when cattle are confined in railroad cars that are not moving, they are much more prone to become injured than when the cars are moving. Plaintiff's evidence further shows that many of the cattle confined in the cars were bruised, scratched, and crippled, some had broken horns and ribs, that five head died in course of transportation, and that all were in what cattle dealers call a "stale" condition, with "dead hair," and did not look fresh after their confinement in the cars at Las Vegas, and that as a result of their injuries the cattle could not be sold for as much as they would otherwise have brought. Plaintiff's evidence also tends to show that, on account of the condition of the cattle, as a result of their confinement in the cars, it was necessary to purchase additional feed for them before they could be placed on the market.

Appellant does not attack the judgment upon the ground that the damages awarded are excessive but upon the ground that the court committed errors of law in the trial of the cause, and that upon the facts defendant is not liable at all, except for the value of the five head that were killed.

Plaintiff in his complaint bases his claim for damages upon two grounds of breach of duty of the defendant to plaintiff, namely: (1) That the facilities maintained by the defendant for caring for live stock while being fed, watered, and rested in transit on its railroad between Salt Lake City and Los Angeles were inadequate to care for the live stock handled by the defendant; (2) that the defendant was negligent in loading the cattle into the railroad cars at Las Vegas and permitting them to remain in the cars for the period of time that the cattle were so confined.

At the conclusion of the evidence the trial court disposed of plaintiff's claim that defendant did not maintain sufficient facilities for the care of live stock while being fed, watered, and rested while in transit over its railroad by instructing the jury as follows:

"No. 11. The jury is instructed that there is no evidence that the pens and yards maintained by the defendant at Las Vegas, Nev., for the feeding, watering, and resting of live stock in transit, are not reasonably sufficient for the ordinary and usual volume of business at that point." Some of appellant's assignments of error are based upon the admission of evidence affecting the yards and pens maintained by the defendant for the purpose of caring for live stock being shipped over its railroad. If any errors were committed in this respect, the same were cured by the court's instruction to the jury, and therefore no useful purpose can be served by a discussion of these assignments in this opinion. As affecting plaintiff's claim for damages for loading the cattle into the cars and permitting them to remain therein, the court gave, among others, the following instructions:

"No 2. You are instructed that the defendant is a common carrier and is liable for loss or injury to property intrusted to it for transportation, which loss or injury is not caused by an act of God or the public enemy. This rule applies to live stock, with the further exception that the carrier is not liable for loss resulting from the inherent vice, nature, or propensities of the property, and not due to any negligence or fault on the carrier's part. This rule exempting the carrier from loss occasioned by the inherent nature of property or the natural propensities of animals, and not due to negligence, is not to be extended as to relieve the carrier from the duty to take notice of the ordinary weakness, character, and propensities of domestic animals, and...