Chicago B. & Q. R. Co. v. Tolman

• Decision Date: 08 April 1924
• Docket Number: 1128
• Citation: 224 P. 671,31 Wyo. 175
• Parties: CHICAGO B. & Q. R. CO. v. TOLMAN
• Court: Wyoming Supreme Court

224 P. 671

31 Wyo. 175

CHICAGO B. & Q. R. CO. v. TOLMAN

No. 1128

Supreme Court of Wyoming

April 8, 1924

ERROR to District Court, Big Horn County; PERCY W. METZ, Judge.

Action by Frank Tolman against the Chicago B. & Q. Ry. Co., for damages on account of alleged loss and delay in the transportation of sheep. There was judgment for plaintiff and defendant brings error.

Judgment affirmed.

C. A Zaring, Goddard & Clark for plaintiff in error.

Plaintiff's action is based upon negligence of defendant company and it was material for the jury to determine the issue of negligence; interrogatory number six was submitted to the jury without objection on the question of negligence interrogatory number six had been answered by the jury in the negative; defendant in error then moved that said interrogatory and the answer thereto be stricken out defendant in error had not objected to the interrogatory when given. Defective or improper interrogatories should be objected to at the time they are submitted, 23 Stand. Enc. Pro. 991; plaintiff in error at the close of the trial moved for a judgment in its favor, first for failure to prove negligence, and second, that inasmuch as defendant in error accompanied the shipment, it devolved upon him to prove that the alleged loss was due to negligence in caring and handling the shipment, Backserman v. Ry. Co., 169 Mo.App. 168; Robinson v. Bush, 200 S.W. 757; inasmuch as defendant in error based his action upon negligence, and the jury had found adversely on the issue of negligence, it was error to strike interrogatory number six, and the answer thereto, from the record; it appears from the motion filed by plaintiff in error that defendant in error accompanied the shipment, to care for the same; he therefore assumed the burden in an action for damages of proving that the loss or injury was the result of the carrier's negligence either in transporting the stock or in failing to properly care for it, 10 C. J. 381; Hanley v. C. M. & St. P. Ry. Co., 134 N.W. 417, 115 N.W. 919, 132 N.W. 57; 133 N.W. 748; Colsch v. Ry. Co., 127 N.W. 198, citing "Elliott on Railroads," which lays down the rule above quoted, Vol. 4 R. C. L., Par. 462, and cases cited in note. This he failed to do, and the jury having found that there was no negligence on the part of the Company the finding was binding upon the Court, and the overruling of the motion of plaintiff in error for judgment was reversable error; the judgment below should be reversed.

Brome & Hyde for defendant in error.

There being no bill of exceptions, there was no question presented for review; every presumption is in favor of the correctness of the decision of the trial court, 2 R. C. L. 184; it must be presumed in favor of the action of the trial court that the proper motion was made by plaintiff for a directed verdict in accordance with 5897 Comp. Stats., an exception to a ruling on a motion for judgment on special findings must be incorporated in the record by bill of exceptions and not otherwise, 5867 Comp. Stats., Freeburgh v. Lamoureux, 12 Wyo. 41; allegations of negligence were unnecessary; the petition would state a good cause of action if the averments of negligence were stricken out, and are fully covered by the special findings of the jury; carriers receiving livestock for transportation assume the liabilities which attach to the carriers of goods, except that they are not accountable for loss resulting from the inherent nature of the property and not due to its negligence; in every other respect the carrier is an insurer of the property, 10 C. J. 43; N. P. R. R. Co. v. Bank, 123 U.S. 727; plaintiff's allegation of negligence did not change the burden of proof, Bell v. Pleasant, 145 Cal. 410; in the absence of a bill of exceptions the contention of plaintiff in error that no negligence was shown at the trial is wholly gratuitous; it was an interstate shipment governed by Section 8604-A U. S. Comp. Stats. 1918, which imputes to the carrier an absolute liability.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This action was commenced in the district court of Big Horn County by Frank G. Tolman, the defendant in error, against the Chicago, Burlington & Quincy Railroad Company, plaintiff in error here, and against Walker D. Hines, Director General of Railroads. The case seems to have been discontinued as to the latter defendant. The amended petition filed herein alleges that on the 15th day of September, 1917, plaintiff delivered to said Railroad Company, as a common carrier, 2859 head of sheep to be delivered over its road to Omaha, Nebraska; that said sheep were loaded and it became the duty of said Railroad Company to promptly and safely transport and deliver said sheep, but that said Company failed to perform its duty, and carelessly and negligently handled and transported said sheep and delivered at Omaha 247 sheep less than had been delivered to it at Greybull, Wyoming; that said 247 sheep are of the value of $ 2470, for which, with interest, judgment is demanded. An answer was filed by said Company, denying the allegations contained in plaintiff's petition. The cause was tried before a jury on May 1, 1920, and a general verdict was returned in favor of the defendant in error. This verdict was subsequently set aside and the case was retried to a jury on February 28, 1921. No general verdict was returned at that trial, but special interrogatories were submitted to the jury and answered. In the answers to the first four interrogatories, the jury found the number of sheep that had been delivered to the defendant at Greybull, Wyoming, the number of sheep that arrived at their destination, and the value of the sheep that were found to be short. In answer to interrogatory No. 5, the jury stated that the sheep that were short were lost in transit by an unknown cause. Interrogatory No. 6 is as follows:

"If, in your previous interrogatories, you have answered that any of the plaintiff's sheep were lost in transit, you may state whether such loss was due to the careless and negligent handling and care of said sheep by the defendant company?"

The jury answered "No." On October 10, 1921, the court entered an order striking the 6th interrogatory above mentioned, together with the answer thereto, from the record, and entered judgment for the plaintiff for $ 3114.43, together with the costs. A motion for a new trial was filed in said cause and overruled on October 26, 1921, and said Railroad Company brings proceedings in error here.

1. Counsel for said railroad company assign as error here the action of the court in striking from the record interrogatory No. 6 above mentioned, and the answer thereto. No bill of exceptions is contained in the record and only the journal entries, together with the...