Chicago, Burlington & Quincy Railroad Company v. Pollock

• Decision Date: 10 February 1908
• Citation: 93 P. 847,16 Wyo. 321
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. POLLOCK
• Court: Wyoming Supreme Court

93 P. 847

16 Wyo. 321

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. POLLOCK

Supreme Court of Wyoming

February 10, 1908

ERROR to the District Court, Sheridan County, HON. CARROLL H PARMELEE, Judge.

F. G Pollock sued to recover from the Chicago, Burlington & Quincy Railroad Company, for the loss of two horses which, it was alleged, the company had failed to transport as a common carrier according to contract. From a judgment in favor of plaintiff, the defendant prosecuted error. The facts are stated in the opinion.

Affirmed.

Lonabaugh & Wenzell and N. K. Griggs, for plaintiff in error.

Though the bills of lading, mistakenly issued by the agent without any personal knowledge on his part, show 56 horses, that only only 54 went into the cars is proven, (1) by the evidence of Dodge, who did the loading and who alone speaks as to this (2) by the admitted facts that none escaped or could have escaped from the cars, yet 54 head only were found at the unloading at Alliance; (3) by the statement of plaintiff himself, who, after having gone with the horses to Alliance, said that he had no reason to think that any of them got out of the cars on the way there; (4) by the explicit finding of the jury that the 2 horses in question were neither loaded into nor escaped from the cars. But, should we concede that the 56 horses were actually in pen No. 23, on the evening of the day of shipment, this would not aid plaintiff, for then the result would be that 2 of them escaped, or were taken from his pen, where, under the decisions, he, and not defendant, had to take the chance of loss, as the pen was not under the control of defendant, but of another, and plaintiff's horses while therein were subject to his disposal. (R. R. Co. v. Riley, 27 A. & E. R. R. Cas., 49; R. R. Co. v. Hunter, 18 id., 527; R. R. Co. v. Powers, 103 N.W. (Neb.), 678; Ry. Co. v. Byrne, 100 F. 359.)

The misconduct of counsel, when the court sustained an objection to a question put on cross-examination to one of defendant's witnesses, in stating that if permitted he would prove it, was prejudicial, and entitles defendant to a new trial. The question was intended to reflect upon the witness, and the counsel's conduct was such as is held to entitle a party to a new trial even though the court at once does everything possible to nullify the effect of the wrong. (Nelson v. Welch, 115. Ind. 273; Cosselman v. Dunfee, 65 N.E. 494; People v. Davey, 72 id., 245; Cook v. Com., 76 id., 666; Bullard v. R. R. Co., 64 N. H., 323; Jaques v. R. R. Co., 41 Conn. 61.) Plaintiff has, by his pleading, narrowed this case to very small limits. The default he alleges against defendant is alone the latter's failure to transport. Indeed, his petition, in express terms, says that we did load the horses; it does not say that we did not do so, nor that they were lost before loading by any act of defendant. When the case came to trial, the issues changed entirely from those made by the pleadings. By the petition we were called upon to defend upon the ground that we had loaded the horses into the cars and then lost them. The case as made, and as specifically found by the jury, was not charged at all. In truth, there was no evidence whatever even tending to support the negligence alleged against us, there being as to this an entire failure of proof. Upon the case made by the pleadings we were entitled to an instructed verdict in defendant's favor, the rule being universal that the proof must correspond with and support the default as alleged; hence it was error for the court to refuse the motion made for such instructed verdict.

Robert P. Parker, for defendant in error.

The evidence establishes a delivery of 56 horses, and the agent made out the contract for that number without plaintiff's assistance. It is true that petition alleges that defendant loaded the horses into the cars, but that allegation was made solely for the purpose of meeting the recitation in the contract of shipment that plaintiff should load and unload, and to show that defendant had waived that obligation on part of plaintiff by itself loading the car, and thus exempting plaintiff from the consequences of a negligent loading. (Normile v. R. & N. Co., 69 P. 930.) The question of variance was fully presented to the court below, and defendant held not to have been misled. The alleged misconduct of counsel was not preserved by being stated as a ground in the motion for new trial, and cannot, therefore, be here considered. The plaintiff, a shipper, having shown delivery to the defendant, a common carrier, and having shown a loss, the carrier is liable unless it brings itself within the excepted causes or exception by contract. (6 Cyc., 519.)

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

OPINION

POTTER, CHIEF JUSTICE.

The defendant in error, who will be referred to as the plaintiff, his title in the district court, brought this action to recover the value of two horses, alleged to have been delivered to and received by the plaintiff in error, defendant below, to be transported by it, as a common carrier, from Sheridan, in this state, to Hammond, Indiana, under two separate contracts, or bills of lading, each providing for the transportation of twenty-eight horses, and it is alleged that, in violation of the defendant's said contracts, it failed to transport the whole number of horses as thereby agreed respectively, but that it transported from Sheridan twenty-seven horses only of the number covered by each contract. The answer alleges that twenty-seven horses only were in fact delivered and received under each contract, and that the number was mistakenly entered in each as twenty-eight in consequence of plaintiff's erroneous statement to the defendant respecting the number. The principal issue to be tried, therefore, was whether the two horses in question had been delivered and received for such shipment.

That the defendant is a common carrier, operating a railroad running through Sheridan County, in this state, is admitted by the pleadings. It appears from the evidence that there was but a single delivery of horses for the shipment aforesaid, that is to say, all the horses then proposed to be shipped by the plaintiff were delivered at one and the same time, but they were loaded into two cars, and a separate contract was made for the horses in each car. The plaintiff owned all the horses and was named as consignee in each contract, and as the shipper in one of them. In the other contract one W. P. Palmer was named as shipper, and his name is subscribed to that contract. That appears to have been done to enable said Palmer to accompany the plaintiff with the horses, he having been employed, as plaintiff testified, to assist with the horses after their arrival at destination. This seems to explain the reason for the making of two contracts instead of one. They are alike in their terms except as to the name of the shipper and the number of the car containing the horses. Each contract contains the following stipulation: "It is agreed that the said animals are to be loaded, unloaded, watered and fed by the owner or his agents in charge; that the second party (the carrier) shall not be liable for loss from theft, heat or cold, jumping from car, or other escape, injury in loading or unloading, injury which animals may cause to themselves or to each other, or which results from the nature or propensities of such animals." It is also stated in each contract that, in consideration of free transportation for one person to accompany the stock, "it is agreed that the said cars, and the said animals contained therein, are and shall be in the sole charge of such persons, for the purpose of attention to and care of the said animals, and that the railway company shall not be responsible for such attention and care." The sum of $ 121 is stated in each contract and alleged in the petition as the freight rate to be paid for the agreed transportation.

Notwithstanding the stipulation in the contracts as to loading the animals, the petition alleges and the evidence shows that the loading was done by an employee of the defendant, the foreman of its stock yards at Sheridan, the point of shipment; and from the evidence it appears that such loading occurred during the absence of the plaintiff. The discrepancy between the number of horses stated in the contracts and way-bills and the number actually in the cars was noticed when the train carrying the horses reached Alliance, Nebraska, on the defendant's railroad. The horses were unloaded there during the night of their arrival and but twenty-seven were found to be in each car by the foreman of defendant's stock yards at that point, who assisted in unloading them, and the next morning, the horses having remained there until then, the plaintiff saw and counted the horses and discovered the discrepancy between the number stated in the contracts and which he claims to have been delivered, and the number being transported. He thereupon at once made and filed a claim for the alleged missing horses with the defendant's representative at Alliance, which was referred to the defendant's freight claim agent. Thereupon some correspondence occurred between the latter and the plaintiff, resulting in an offer of settlement at a stated figure by said claim agent, but which offer plaintiff did not accept. That correspondence was introduced in evidence. Whatever the loss or escape, therefore, it occurred, if at all, before the unloading of the horses at Alliance, so far as the evidence is concerned.

The jury returned a general verdict for the plaintiff, assessing the damages at $ 160, with interest; and with their verdict returned answers to certain special interrogatories that had been submitted...