Chi., R. I. & P. R. Co. v. Garrison

• Decision Date: 20 November 1934
• Docket Number: Case Number: 22823
• Citation: 38 P.2d 502,1934 OK 640,169 Okla. 634
• Parties: CHICAGO, R. I. & P. R. CO. v. GARRISON.
• Court: Oklahoma Supreme Court

1934 OK 640

38 P.2d 502

169 Okla. 634

CHICAGO, R. I. & P. R. CO. v. GARRISON.

Case Number: 22823

Supreme Court of Oklahoma

Decided: November 20, 1934

Syllabus

¶0 1. Carriers--Liability for Shipment of Calves Held not to Arise Until Shipper Had Separated Cows From Calves in Loading Pens.

Plaintiff ordered cars for shipment of 231 calves and was informed by the railroad agent the cars would be ready for transportation about 7 p. m. Relying on this promise, plaintiff drove the 231 calves and their mothers from the ranch to the railroad shipping point, arriving about noon and by 1 o'clock had the calves and cows inside the railroad stock pens, but did not separate the cows, which were not to be shipped, from the calves until about 4:30 o'clock p. m. Held: (a) that although the railroad station agent had been notified by 1 o'clock p. m. the calves had arrived for shipment and put in the stock pens, nevertheless the calves were not delivered to the railroad as a common carrier at 1 o'clock p. m., and (b) that the company's liability as a common carrier did not arise until the plaintiff had separated the cows from the calves.

2. Same--Delivery to Carrier Required to Be Complete Before Liability Attaches.

So long as there is something essential for the shipper to do in order to enable a railroad to commence transportation, there is no liability on the part of the railroad as a common carrier, because delivery is not complete.

3. Same--Injury to Live Stock not Presumed From Delay in Transportation.

Although the failure of a railroad company to deliver live stock in proper condition within a reasonable time makes a prima facie case of negligence and casts the burden on the railroad to excuse itself, nevertheless there is no presumption of fact that live stock were scarred and bruised by the railroad, that being a physical condition for the shipper to prove.

4. Trial--Duty to Instruct Jury Thai Issue Is Unsupported by Evidence.

Whether or not there is any evidence to sustain a particular or specific issue of fact on the trial of a law action to a jury is a question of law for the court, and if the court finds no such evidence, he should instruct the jury accordingly.

5. Trial--Erroneous Instruction Assuming Proof of Fact in Controversy.

It is error for the trial court in its instructions to the jury to assume the proof of a material fact in controversy.

6. Appeal and Error--Review--Harmless Error--Affirmance.

If, from an examination of the entire record, including the evidence and instructions to the jury, it does not appear "that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right," it is the duty of this court to affirm the judgment of the trial court.

Appeal from District Court, Oklahoma County; Wyley Jones, Judge.

Action by Jesse Garrison against the Chicago, Rock Island & Pacific Railway Company for damages to 231 head of calves occasioned by unreasonable delay in their shipment from Logan, New Mexico, to Oklahoma City. Judgment for plaintiff, and defendant appeals. Affirmed.

W. R. Bleakmore, W. L. Farmer, John Barry, and Robt. E. Lee, for plaintiff in error.

Suits & Disney and Mary L. Weiss, for defendant in error.

PER CURIAM.

¶1 Defendant in error, as plaintiff below, brought this action against the railway company for damages in transporting for plaintiff 231 head of cattle and calves from Logan, N. M., the point of origin, to Oklahoma City, the point of destination. Plaintiff's petition sets forth two causes of action for damages, though not separately stated and numbered as such. He alleges that as the owner of 231 head of cattle and calves, "at about 12 o'clock noon" on September 28, 1929, he "delivered said cattle and calves to the defendant at Logan, N. M., for loading and transportation to Oklahoma City, Okla.". that he had been "advised by defendant's agent at Logan, N. M., at the time he ordered the cars for shipping said cattle and calves, that said shipment would be moved out of Logan some time during the afternoon of Saturday, September 28th, and acting upon said promise and agreement, plaintiff Denned said cattle about 1 o'clock p. m. on said date," and "that though said cattle were penned and loaded in plenty of time to have been moved at the time promised by defendant's agent, said shipments were actually not moved out of Logan, N. M., until 6 o'clock a. m., on Sunday, September 20th, and did not reach Oklahoma City until the morning of Tuesday, October 1st." After alleging that said cattle "were all in good order" and that "upon delivery of said cattle and calves to the defendant it thereby became the duty of said defendant to expeditiously carry and convey the same over its line of railway and there deliver said shipment to the plaintiff at Oklahoma City," plaintiff proceeds to further allege "that the defendant negligently and carelessly handled the trains in which such shipments of cattle were being transported' that said trains were handled in a rough and unusual manner; that said cars in which said cattle and calves were being transported were jerked, bumped, kicked and switched about by said defendant in a rough anti unusual manner, with the result that said cattle and calves were scarred and bruised upon reaching the market at Oklahoma City, and presented a stale and stupid appearance when placed upon the market on October 1, 1020, with the result that they brought 25 cents less Der hun tired pounds than they would have bought but for such negligence and carelessness on the part of the defendant; that said shipments of cattle and calves weighed 83,010 pounds, and at 25 cents per hundred pounds amounts to $ 200.77; for which sum said defendant has become liable to this plaintiff." That may be designated as plaintiff's first cause of action.

¶2 The jury returned a verdict for plaintiff for the exact sum of $ 200.77, upon which judgment was duly entered, motion for a new trial filed, overruled, exceptions made, and notice of appeal given by defendant.

¶3 Briefly stated, the first cause of action is for alleged "personal injuries" sustained by the cattle, which, in turn, if proved, damaged the plaintiff to the extent of the difference between the market value of unscarred and unbruised cattle and injured cattle in the amount of $ 209.77, according to his allegations.

¶4 There is not a scintilla of evidence in the record showing or tending to show that the cattle "were scarred and bruised upon reaching the market at Oklahoma City."

¶5 Although, as held in Eastern Elevator CO. v. A., T. & S. F. Ry. Co., 93 Okla. 20, 219 P. 332, the failure of the railroad company "to deliver" live stock "in proper condition within a reasonable time" raises the presumption of negligence and casts the burden upon the railroad company to excuse itself, nevertheless there is no presumption that live stock were scarred and bruised by an unreasonable delay in shipment. That is a question of fact easily proven by an examination of the cattle.

¶6 The defendant requested the court to instruct the jury to return a verdict in its favor, and if this were all in the case we would be forced to sustain the third assignment of error based on the trial court's refusal to instruct the jury to return a verdict in defendant's favor. However, plaintiff further alleges "that by reason of the carelessness and negligence of said defendant" (a) "in delaying said shipment at Logan, N. M.," and (b) "transporting said shipment of cattle and calves, as hereinbefore described, said cattle were caused to shrink in weight an average of 30 pounds per head, aggregating 6,930 pounds, at an average of $ 10.45 per 100 pounds, amounting to $ 724.18," and that "said shrink upon said animals was over and above what they would have shrunk if they had been transported within the usual and customary time and with reasonable care." Plaintiff also alleges that on account of delay in transportation of the cattle they were unloaded at El Reno, Okla., and fed, at a cost of $ 16 to the plaintiff. Then, in general, plaintiff alleges'

"That by reason of all the facts herein alleged and by reason of the carelessness and negligence of the said defendant, its agents, servants, and employees, and by reason of the defendant carelessly and negligently delaying said shipment at Logan, N. M., and at different places along its said line of railway, and by reason of the carelessness and negligence of said defendant's employees in charge of said trains, causing same to be unnecessarily jerked, bumped, kicked and switched about at its various stations, said defendant has become liable and indebted to this plaintiff in the following sums:

"Excess shrink of 30 pounds per head, aggregating 6,930 pounds at 10.45 $ 724.18

"Loss, on account of stale and stupid appearance, 83,910 pounds at 25c per cwt. 209.77

"Extra feed 16.00 $ 950.35" he prays for judgment "in the sum of $ 950.35, and for the costs of this action."

although plaintiff did not allege the Oklahoma City Tuesday market was lower than on Monday, the cattle buyer testified it was lower.

¶7 As there is no mathematical standard by which the mental operations of the jury can be measured, and as the verdict cannot be sustained for scarring and bruising the cattle in transportation, we will assume for the moment that the jury's verdict was for damages for pound shrinkage blended with cattle staleness and stupidity, by nature not always an unusual characteristic of the brute. Whether the verdict can be sustained on this theory depends upon whether or not there was an unreasonable delay in transportation, and this in turn involves the question of fact as to when the cattle were delivered to the defendant for transportation, as the defendant's liability as a common carrier, as distinguished from that of warehouseman, is an issue. Defendant contends its responsibility as a common carrier of the cattle began at 6:00 a. m....