Chicago, St. Paul, Minneapolis & Omaha Railway Company v. Schuldt
| Decision Date | 22 October 1902 |
| Docket Number | 11,356 |
| Citation | 92 N.W. 162,66 Neb. 43 |
| Parties | CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY v. CHARLES SCHULDT ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Cuming county. Tried below before EVANS, J. Reversed.
REVERSED AND REMANDED.
John B Barnes, Benjamin T. White and James B. Sheean (Thomas Wilson of counsel), for plaintiff in error.
W. W Sinclair and Ira Thomas, contra.
DAY, C. HASTINGS and KIRKPATRICK, CC., concur.
On July 1, 1897, the plaintiffs shipped fifty-eight head of hogs over the defendant's railway from Bancroft, Nebraska, to South Omaha, Nebraska. The hogs were loaded on the car about nine o'clock in the evening and when delivered to the consignee at the place of destination upon the following morning, twenty-two were dead, and the rest were in a very bad condition, on account of being overheated. The plaintiffs charge that the injury was the result of the failure of the defendant to pour water over and upon the hogs at different stations along the route, and in this particular it was alleged that it was necessary to the safe and proper transportation of said hogs that they be so watered. The answer, among other things, alleged that at the time the defendant received said car of hogs from the plaintiffs it entered into a contract with the shippers, which contained a clause as follows: "The said shipper agrees to load, unload and reload all of said stock at his own expense and risk, and to feed, water and attend to the same at his own risk and expense, while it is in the stock-yards of said company awaiting shipment, and while on the cars, or at feeding or transfer points, or where the same may be unloaded for any purpose"; that for the purpose of carrying out the contract and enabling the plaintiffs to do so, the defendant furnished the plaintiffs free transportation for one person to ride on its train from Bancroft to South Omaha, to care for, look after and water said stock according to the terms of the contract; that plaintiffs accepted said free transportation, and put a person as their agent on said train, who took charge of said carload of hogs, and that said agent went through to the point of destination to perform plaintiffs' part of said contract; that said agent so in charge of said stock never at any time informed the defendant's servants, agents or employees in charge of said train, that said hogs needed or required water, or any other care whatsoever; that said agent never at any time requested defendant to water said hogs or permit the said agent to do so; that defendant had no knowledge of the condition of said hogs, but relied upon the agent of plaintiffs to look after them, and request the defendant to water them when necessary; that defendant's agents, servants and employees were at all times ready and willing to water said hogs whenever notified or requested to do so; that if said hogs were killed or injured for want of water or care, it was through no fault or negligence on the part of the defendant, but that the same occurred wholly and solely on account of the negligence of plaintiffs' agent in not looking after, caring for and ascertaining the condition of said hogs, and informing the defendant of the necessity of watering them. A demurrer to the portions of the answer above referred to was sustained. The trial resulted in a verdict and judgment for the plaintiffs, to review which the defendant has brought error to this court.
The real question presented by the record is whether a shipper of live stock, who agrees to look after and care for stock during its transportation, and who, for the purpose of carrying out the contract, receives free transportation, can recover for injuries to the stock, arising from his own neglect to properly care therefor. On behalf of the plaintiffs it is contended that the provision of section 4 article 11, of our constitution, which provides that "the liability of railroad corporations as common carriers shall never be limited," applies to cases of this kind, and that the railroad company is liable as an insurer. It may be granted that ordinarily, and when no special agreement is made, it is the carrier's duty to attend to the watering of live stock in such a way as to prevent loss from the lack of it. So much is conceded by the railway company in this case. It is not thought, however, that this liability is the consequence of the contract being one for carriage. It is just as much the incident of any other bailment of a live animal. It would be as much the duty of one who should undertake to yard or pasture these hogs as it would of a transportation company. It is a mere...
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