Carpenter v. Hines

• Decision Date: 03 April 1922
• Docket Number: No. 14103.,14103.
• Citation: Carpenter v. Hines, 239 S.W. 593 (Mo. App. 1922)
• Parties: CARPENTER v. HINES, Director General of Railroads.
• Court: Missouri Court of Appeals

239 S.W. 593

CARPENTER v. HINES, Director General of Railroads.

No. 14103.

Kansas City Court of Appeals. Missouri.

April 3, 1922.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

"Not to be officially published."

Action by Wm. P. Carpenter against Walker D. Hines, Director General of Railroads. From judgment for plaintiff, defendant appeals. Reversed and remanded.

H. J. Nelson, of St. Joseph, L. D. Ramsay, of Rockport, and J. G. Trimble and E. M. Spencer, both of St. Joseph, for appellant.

W. R. Littell, of Tarkio, for respondent.

TRIMBLE, P. J.

Plaintiff shipped three carloads of cattle, 70 head in all, from Omaha, Neb., to Hamburg, Iowa. They left Omaha some time in the afternoon of July 28, 1919, and arrived at Hamburg the next morning. When the shipment was unloaded, three of the cattle were dead, two died shortly after getting them in the pens, and four more died within the next 24 hours in a lot a short distance from Hamburg, whither they had been taken for rest. The dead cattle were skinned, and their bodies were found to be bruised. In addition to these, there were 26 head so badly bruised and injured that they did not do well. They were lame and laid around. Their hair looked badly, and abscesses came on their sides and backs where they were bruised. So that when they were sold about 90 days later they did not weigh what they would have weighed had they not been injured.

This action was brought to recover the damages sustained by reason of the injuries inflicted upon the cattle. A recovery was had in the sum of $2,054.21, and from the judgment rendered in plaintiff's favor the defendant has appealed.

In legal effect the petition does not seek to hold defendant liable for failure to perform its common-law duty, nor does it charge general negligence, It charges specific negligence in that the defendant was "careless and negligent in handling the cars in which said cattle were shipped; that the agents and employés and servants of defendant, in switching and transporting said cars in which said cattle were shipped, carelessly and negligently handled them and jammed them against each other and against other cars at a high rate of speed and in a careless, reckless, and negligent manner."

It is true this was preceded by a general allegation of negligence, but, as this was followed by a specific allegation, of course, the latter controls and is considered as the specific statement of what was the negligence theretofore generally alleged. Clark v. Motor Car Co., 177 Mo. App. 623, 628, 160 S. W. 576. Indeed, in respondent's brief it is conceded that the petition declares on specific negligence.

Plaintiff offered no direct affirmative testimony expressly stating that the Cattle were roughly handled while on the trip. And, on the contrary, the defendant offered the testimony of the trainmen that the cattle were carefully handled, and that there were no jars or jamming of the cattle or of the cars either in switching or while on the line in transit. The cattle were Herefords from North Park, Colo., and just before this had been transported from thence to Omaha. Plaintiff had evidence to show that, when they were loaded at Omaha and started on their journey to Hamburg, they were all right and in good condition, not being bruised or injured in any way. Consequently, if this were true, they were injured in some way while on their journey to Hamburg. And, while the defendant had evidence to show that when the cattle were unloaded at certain places they were wild and unruly, trying to rush frantically out of the cars down the chutes and jamming each other against the sides of the door and chutes, yet plaintiff's evidence is that such experiences would not raise any bruises on their backs, and furthermore that quiet, even-tempered cattle, if subjected to rough handling in switching or transportation and jammed against each other, would be wild, frightened, and unruly when unloaded; also that the injuries inflicted upon the cattle were such as usually result from jamming cattle in the cars by rough handling and switching, throwing them in a mass against one end of the car, piling them on top of one another, and knocking them down so that others would step on them.

We are unable to find in the record any evidence as to whether these cattle were quiet or wild and unruly before they reached Omaha or were loaded on this trip. Such evidence, if produced, would...