Chicago, B. & Q. R. Co. v. Simpson Bros.

• Decision Date: 05 October 1915
• Docket Number: 814
• Citation: 23 Wyo. 342,151 P. 902
• Parties: CHICAGO, B. & Q. R. CO. v. SIMPSON BROS
• Court: Wyoming Supreme Court

151 P. 902

23 Wyo. 342

CHICAGO, B. & Q. R. CO. v. SIMPSON BROS

No. 814

Supreme Court of Wyoming

October 5, 1915

ERROR to the District Court of Sheridan County; HON. V. J. TIDBALL Judge.

The material facts are stated in the opinion.

Affirmed.

E. T Clark and Burgess & Kutcher, for plaintiffs in error.

The testimony of the witness John Wallace was incompetent and should have been excluded; the condition of the cattle three months after shipment was not a proper basis for estimating shrinkage; it is not shown whether the cattle improved or depreciated under proper or improper care and treatment. The testimony was misleading to the jury. The only competent testimony would have been the condition of the cattle at the date of their delivery at destination. The only proper measure of recovery would be the difference between the fair market value of the cattle when delivered and their market value at point of destination; the evidence was insufficient to sustain the verdict; the issue of negligence was reduced by the court to the alleged overloading of defendant's engine between Billings and Bridger; the jury should have been instructed that unless such negligence was established by a preponderance of the evidence, they should have found in favor of defendant; the trial court erred in giving an instruction with reference to what is known as the "twenty-eight hour" law, for the reasons: (1st) that said law was not pleaded; (2nd) the instruction does not correctly state the law; (3rd) that it was the company's duty to feed and water cattle irrespective of any contract requiring the same; (4th) the instruction is misleading in not limiting the effect of such a law to the establishment of a prima facie case of neglect; (5th) given without qualification, it prejudiced the jury against the company. (Hale v. Mo. Pac. R. Co., 54 N.W. 517 (Neb.); Hengstler v. Flint &c. Ry. Co., 84 N.W. 1067 (Mich.); McKenzie v. Mich. Cent. R. Co., 100 N.W 260 (Mich.) The court specifically instructed the jury, as a matter of law, that the company was not chargeable with the neglect of the shipment of cattle from Denver to Billings. The verdict is not sustained by the evidence; the petition averred negligence: (1st) in permitting two cars to have flat wheels; (2nd) in overloading its engine between Billings and Bridger; (3rd) in holding the cattle between Alliance and Tyndell for forty-three hours without rest, food or water. The first and third allegations were eliminated as issuable facts by the court. Upon the second ground, the court submitted to the jury several interrogatories. The sole question in the case is whether the evidence supports the allegation of negligence in overloading the engine between Billings and Bridger, as plaintiffs cannot recover by proof of any other negligence (14 Ency. Pl. & Pr. 342; Carter v. Kansas City &c. R. Co., 210 N.W. 607 (Iowa); Miller v. Chicago & N. W. R. Co., 23 N.W. 756 (Iowa); Volguardson v. Iowa Tel. Co., 126 N.W. 928 (Iowa); Flaherty v. Butte Electric R. Co., 107 P. 416 (Mont.); Bracey v. Northwestern Imp. Co., 109 P. 706 (Mont.); and the evidence must show a connection between such negligence and the injury. (Morrison v. La France Copper Co., 101 P. 243 (Mont.) The only evidence on this point is that of Edgar Simpson, and that was largely hearsay, consisting of an alleged conversation with a brakeman. There was no evidence of overloading as an ultimate fact. A brakeman's declaration is not binding on his employer. (16 Cyc. 1022; Patterson v. Wabash &c. R. Co., 19 N.W. 761 (Mich.) Hearsay evidence standing alone is insufficient to establish a vital issue in the case. (Drake v. N. Y. Cent. R. Co., 30 N.Y.S. 603; Bank v. Wooddy, 10 Ark. 638; Hutchins v. Castle, 48 Cal. 152; Lehman v. Frank, 19 A.D. 442, 46 N.Y.S. 761; Equitable Mt. Co. v. Watson, 46 S.E. 440 (Ga.); Lumber Co. v. Lumber Co., 49 S.E. 729 (Ga.); Claflin v. Ballance, 18 S.E. 309 (Ga.); Eastlick v. So. Ry. Co., 42 S.E. 499 (Ga.); Suttles v. Sewell, 43 S.E. 486 (Ga.); Childers v. Peckenpaugh, 118 S.W. 453 (Mo.); Rosenberg v. Wilkins, 111 N.Y.S. 539; Jones v. Phimmer, 118 S.W. 109 (Mo.); Stuart v. Harris, 69 Ill.App. 668; Sherman v. Stafford, 51 A. 48 (R. I.) The testimony of B. J. Amend, engineer, E. N. Haas, fireman, C. J. Warfield, conductor, and W. H. Johnston, dispatcher, all showed that the drop in temperature was unusual and that there was no way to foresee or obviate the difficulty between Billings and Bridger; the weather conditions being extraordinary and the delay being in no sense due to incapacity of the engine. The burden was upon plaintiff to prove the negligence. (Midland Valley R. Co. v. Fulgham, 181 Fed. Rep., p. 95; Hotchkiss v. Green Bay & W. R. Co., 141 N.W. 231.) Verdicts cannot rest upon conjecture and verdicts contrary to the evidence will be set aside. (29 Cyc. 830.) A railroad is not an insurer against consequences of a shipper's choice as to time of shipment or against the inevitable shrinkage in a shipment of southern cattle to a northern climate in the dead of winter, when the temperature registers thirty degrees below zero.

R. B. Parker and Clyde M. Watts, for defendant in error.

The objection to the testimony of witness Wallace was general and was not sufficient for consideration on appeal. (Wigmore Evidence, Sec. 18.) There was evidence of a shrinkage in the cattle of sixty pounds per head. Holding cattle more than twenty-eight hours is a violation of the federal statutes and an act of negligence. (Ballard v. Collins, 115 P. 1051.) The evidence showed that the delay commenced in the Billings yards by the freight crew having in charge forty-five cars of plaintiffs' stock consenting to push a Northern Pacific passenger train ahead of them, which was frozen up. There was evidence of a lack of motive power. The cases of Hale v. N. Pac. R. Co., 54 N.W. 517, and Cram v. C. B. & Q. R. Co., 123 N.W. 1045, are not in point for the reason that the federal statute was not pleaded. The declaration of the brakeman to the effect that the engine was overloaded and could not pull the train was competent as a part of the res gestae. (Alsever v. Railroad, 88 N.W. 841; Fish v. Railroad, 65 N.W. 995; Hermes v. Railway Co., 50 N.W. 584; Durkee v. Railway Co., 9 P. 99; Railway Co. v. Elliott, 74 N.W. 628; Kern v. Des Moines City Ry. Co., 118 N.W. 452; Christopherson v. Railroad, 109 N.W. 1077; Hyvonon v. Iron Wks., 115 N.W. 167.) Defendant had an opportunity to make a good shipment and failed, and had an opportunity to show to the court and jury that it made a good shipment and failed. The judgment of the District Court should be affirmed.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

The defendants in error, who were plaintiffs in the lower court, recovered a verdict and judgment against the plaintiff in error for an alleged loss and shrinkage of certain live stock shipped by them during the month of February, 1913, from Denver, Colorado, over defendant's railroad to Tyndell, Montana, which loss and shrinkage were alleged to have resulted from delay caused by the alleged neglect of defendant in negligently overloading its engine between Billings and Bridger, Montana, and in holding the live stock en route between Alliance, Nebraska, and Tyndell, Montana, without rest, food or water for the period of forty-three hours.

With the exception of the alleged failure to so feed, rest and water the stock en route, the issues were reduced by the instructions of the court to the alleged overloading of the engine between the points indicated. The evidence tends to show that the train originally consisted of forty-seven carloads of stock, amounting to 1,956 head of cattle. Two carloads were laid off at Gillette, Wyoming, as to which plaintiffs were not permitted to recover and of which no cross-error is here assigned. The balance of the train reached Billings on the morning of February 11th and left that place for Tyndell, a distance of 47 miles, at 5:40 o'clock a. m. of the same day. That the thermometer registered a temperature of 30 degrees below zero, and that a Northern Pacific passenger train pulled out from Billings just ahead of the train in question, and that owing to the cold weather it was having trouble from the effect of cold on its air brakes and the stock train was delayed from that cause and also from the effect of cold weather on its brakes. As expressed by the engineer in charge of the engine, who testified as a witness, and whose evidence is undisputed "Well, the air is coupled between the cars with hose. The hose, in making the coupling, you raise them up and they work in a socket, and when the hose freezes, it freezes them stiff--when the slack of the train come up the hose will freeze, then when the train is stretched out, the hose, instead of stretching out, will open up and cause a reduction in the train line. Any reduction in the train line will set the brakes, and this was done then and caused us to stall with the train." This witness further testified that at the Yellowstone bridge south of Laurel, in Montana, the necessary slowing up of the train bunched the same and when it started up the hill after crossing the bridge the train stretched out and the hose, by opening up, applied the brakes; that he had a D-4 superheating engine with a capacity of 1,600 tons and that the tonnage of the train was 1,329 tons and that the usual tonnage of freight on that particular line was 1,600 tons with that class of engine. That the difficulty here complained of could not be avoided except temporarily, and that it happens often during cold weather in the winter time, but not under normal conditions, and that the running time between Billings to Tyndell, in the absence of such difficulty, is about three hours. ...