Chicago, Burlington & Quincy Railroad Company v. Morris

• Decision Date: 10 February 1908
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. MORRIS
• Court: Wyoming Supreme Court

93 P. 664

16 Wyo. 308

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. MORRIS

Supreme Court of Wyoming

February 10, 1908

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

A. J Morris brought the action to recover damages for injuries occurring to certain horses while being transported by the defendant railroad company. From a judgment in favor of the plaintiff, the defendant prosecuted error. The facts are stated in the opinion.

Affirmed.

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

The car was greatly overcrowded, and this was the shipper's fault. There is no presumption of negligence as against defendant, because of the mere falling and injuring of the stock, as the mishap is properly to be attributed, under the evidence, alone to the wilful neglect of plaintiff in sending the shipment on from Aberdeen to Sheridan without anyone to care for them on the way. The evidence fails to show that the time the horses were on the car between Aberdeen and Sheridan, had anything to do with the condition of the horses. So, if plaintiff is to recover because his stock was hurt through negligence of defendant as to this time, then such negligence is to be wholly presumed, without a word of evidence. That a coupler was broken is admitted. However there is no evidence that this coupler in anywise affected this shipment. On the contrary, the two employes, the conductor and fireman, who alone of the trainmen could be produced at the trial, positively state, and without dispute, that the car was properly equipped with air and carefully handled, with neither jar nor jerk all the way to Sheridan.

True, the car was placed at the rear of the train and true also that the defendant usually then placed such car in front. However, there was no evidence showing, or tending to show, that the place where this car was placed had anything to do, even remotely, with the falling or injuring of these horses. Besides, the custom then of placing stock at the front was merely for the convenience of the defendant. A different custom now prevails. The court improperly excluded offered evidence to show that the rear of the train was a proper place for the car.

Where an act or omission charged does not constitute negligence per se, the party sought to be held responsible may, as a general rule, show that the act or omission was sanctioned by the usage or custom prevailing among those engaged in the same business or same kind of work. (Note to 41 A. & Eng. R. Cas. N. S., 326; Granaries Co. v. Ault, 106 N.W. 418; s. c., 107 N.W. 1015; O'Neil v. R. R. Co., 92 N.W. 731; Law v. Central & C. Co., 140 F. 558.)

The special finding that there was no evidence as to whether it was or was not the duty of plaintiff to go himself, or to send some one, to accompany his stock while in transit from Aberdeen to Sheridan, so as to prevent his horses from falling and being injured, is not only contrary to the fact, as shown by the testimony, but is flatly contradicted by the record here. The verdict of the jury, as to allowing damages on account of the shipment from Aberdeen to Sheridan, was unwarranted by any evidence. The verdict was opposed to the special finding that there was no testimony showing that the falling and injury of the horses was due to any rough or unusual handling by defendant of the car.

Robert P. Parker, for defendant in error.

If the car was overcrowded, the train crew assisted in loading, and knew the fact, and the company could not escape liability. (Kinnick v. Ry. Co., 69 Iowa 670; Normile v. R. & N. Co., 69 P. 930.) The evidence amply sustains the verdict.

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

OPINION

SCOTT, JUSTICE.

This action was brought in the district court of Sheridan County by the defendant in error as plaintiff against the plaintiff in error as defendant to recover damages for injury to horses while in transit over plaintiff in error's line of railway alleged to have been sustained by reason of the negligence of the company. The case was tried to a jury and a general verdict returned December 13, 1906, in favor of Morris and against the company for the sum of $ 295, as damages and interest thereon from October 16, 1905. At the same time the jury returned their separate answers to interrogatories which the court submitted to them as follows, viz.: "Int. 1. Was the car, containing plaintiff's horses, overloaded or overcrowded? Ans. No. Int. 2. Did the overloading or the overcrowding of the car in question cause, or contribute to, the falling or injuring of plaintiff's horses while in transit between Aberdeen and Sheridan? Ans. Not overcrowded or overloaded. Int. 3. Was it the duty of the plaintiff to go himself, or have someone else do so, along with the car of horses in question, while same was in transit between Aberdeen and Sheridan, to prevent his horses from falling and being trampled upon while in the car in such transit? Ans. No evidence to show. Int. 4. Was the falling or the injuring of plaintiff's horses, while in transit between Aberdeen and Sheridan, due to any act of negligence or want of care of defendant? And, if so, state specifically in what such negligence or want of care consisted and also state by whose testimony or by what evidence such negligence or want of care of defendant has been shown. Ans. Bad order car and delayed train. By defendant's witness and all others. Int 5. Was the falling or injury of plaintiff's horses, while in transit between Aberdeen and Sheridan, caused by any rough or unusual handling of the car containing such horses, and if so state specifically where such rough and unusual handling occurred and by whose testimony or by what evidence such fact is established. Ans. No testimony." A motion by the company for judgment on the special findings, as also a motion for a new trial, was overruled, and the company brings the case here on error.

1. The company assigns as error the overruling of its motion for a new trial. It is contended, first, that the evidence is insufficient to support the verdict; second, that the verdict is contrary to law; third, that it was entitled to judgment upon its motion therefor upon the special findings.

It is admitted in the pleadings that plaintiff in error is and was a railroad company operating a line of railroad at the time of the shipment of the horses from Billings, Mont., to St. Louis, Mo. and a common carrier transporting merchandise and live stock for hire, and that it received a car load of horses from the defendant in error as such common carrier and undertook to transport them over its line to their destination.

There was conflicting evidence upon the question as to whether the car was overloaded or overcrowded. The jury, as seen by their special finding number one, found that it was not, and in view of the conflicting evidence upon that question such finding cannot be disturbed. The jury having so answered the first interrogatory, it follows that their second finding is correct, for if there was no overloading or overcrowding of the stock in the car it is apparent that the injury to the animals cannot be attributed to that cause.

The evidence tended to show that upon the plaintiff's application the company on the 16th day of October, 1905, furnished him a car on its side track and at its loading pen at Aberdeen, Montana, for the purpose of shipping a car load of horses from that point to East St. Louis. The car was loaded about eleven o'clock at night and shortly thereafter it was switched from the side track and attached to a freight train in rear of forty-seven car loads of lumber, and next forward of the caboose. The car had a broken draw-bar on the front end, and was coupled to the car in front by a chain, there being about eighteen inches of slack which was not taken up by the chain. The train was equipped with air brakes, which were coupled on to the damaged car. The boiler of the engine was foaming and the train was overloaded, so that in climbing Parkman Hill in going south from Aberdeen the train crew had to divide the train and it was hauled in separate sections up that hill. The train was also delayed by having to wait at meeting points and did not reach Sheridan, a distance of forty miles from the starting point, until some time between 12:30 and 2:30 in the afternoon of the next day. Upon arrival at Sheridan the car was allowed to stand in the yards from one and a half to one and three-quarter hours before the horses were unloaded. It was then found that eight of the horses had been injured by having fallen in the car and having been trampled upon, one dying shortly thereafter; three were in such condition that they could not be shipped further and the remaining four were reloaded with the rest. The three left in the stock yards at Sheridan were afterwards sold by the company, and the other four so injured were sold by the shipper at their destination at prices much below what they would have brought had they been free from injuries. At Newcastle, Wyoming, the horses were again unloaded for water and feed, and with the exception of those left at Sheridan none were missing from the shipment. The horses were again reloaded and upon arrival at Alliance, Nebraska, it was found that one horse was missing. The door of the car was discovered to be partly open and the bull board down.

Neither the owner nor anyone in his behalf accompanied the horses to care for them and attend to their needs between Aberdeen and Sheridan, and this fact was known to the conductor who was in charge of the train. No contract of shipment was signed at the initial point nor at the time of delivery and acceptance of the horses by the company for transportation. The shipment, with the exception of...