Chicago v. Priddy

• Decision Date: 23 February 1917
• Docket Number: No. 9072.,9072.
• Parties: CHICAGO, I. & L. RY. CO. et al. v. PRIDDY et al.
• Court: Indiana Appellate Court

65 Ind.App. 552

115 N.E. 266

CHICAGO, I. & L. RY. CO. et al.

v.PRIDDY et al.

No. 9072.

Appellate Court of Indiana, Division No. 1.

Feb. 23, 1917.

Appeal from Circuit Court, Huntington County; David E. Smith, Special Judge.

Action by John L. Priddy and others against the Chicago, Indianapolis & Louisville Railway Company and others. Judgment for the defendant Louisville & Nashville Railroad, and for the plaintiff against the Wabash Railroad Company, and from orders overruling their joint and separate motions for a new trial, they appeal. A motion to dismiss appeal of the defendant Wabash Railroad Company having been heretofore sustained (108 N. E. 238), the appeal came on for hearing on the merits as to the named defendant. Judgment affirmed.

See, also, Wabash R. Co. v. Priddy, 179 Ind. 483, 101 N. E. 724.

E. C. Field and C. C. Hine, both of Chicago, Ill., for appellants. E. C. Vaughn, of Bluffton, and Lesh & Lesh, of Huntington, for appellees.

HOTTEL, J.

This is a second appeal in an action for damages alleged to have been sustained by appellees in connection with the shipment of a carload of mules from Shelbyville, Tenn., to Huntington, Ind. The former appeal was from a judgment in appellees' favor based on a single paragraph of complaint, the substance of which is set out in the opinion rendered in that case and reported in 179 Ind. 483, 101 N. E. 724, under the title, “Wabash R. R. Co. v. Priddy.'' An examination of that opinion will disclose that the reversal of the former judgment was based on two grounds, viz.: (1) A failure in the proof and finding of facts to show the partnership between the initial and several connecting carriers, and the joint liability based thereon alleged in the complaint upon which such judgment was predicated. (2) The refusal of the trial court to admit in evidence the special contract of shipment under which appellants claimed the stock was shipped.

It will appear from that opinion that the initial carrier, the Nashville, Chattanooga & St. Louis Railway Company, hereinafter referred to as the “N., C. & St. L. Co.,” was not sued in the action, and there was a finding and judgment by the trial court upon the former trial in favor of the first connecting carrier, the Louisville & Nashville Railroad Company, hereinafter referred to as the “L. & N. Co.” The appeal was by the appellants, the Chicago, Indianapolis & Louisville Railway Company, hereinafter referred to as the “C., I. & L. Co.,” and by the Wabash Railway Company, hereinafter referred to as the “W. Co.” There was no appeal from the judgment in favor of the L. & N. Co.

After the rendition of said opinion, the appellees filed an amended complaint in two paragraphs against the three original defendants, the first paragraph of which is based on a common-law liability, its averments being substantially the same as indicated in the former opinion herein, except that there are no averments of partnership. The second paragraph contains substantially the same averments, but is predicated on a special contract which is filed as an exhibit with said paragraph. The C., I. & L. Co. and the W. Co. each answered by a general denial, and the L. & N. Co. filed a general denial and an answer setting up the former judgment in its favor. There was a trial by the court, and at the request of the parties, it returned a special finding of facts, with its conclusions of law thereon. By its conclusions of law, the court found the law to be with appellees that they were damaged in the sum of $1,575, which amount they were entitled to recover off of the C., I. & L. Co. and the W. Co., together with their costs, and that the L. & N. Co. should have judgment in its favor against appellees for costs.

Exceptions to said conclusions of law were properly saved by the C., I. & L. Co. and the W. Co. Each of said companies filed a separate motion for a new trial, and they also filed a joint motion for new trial, each of which motions was overruled, and exceptions saved. A motion to dismiss the appeal of the Wabash Company was sustained by this court. Chicago, I. & L. Ry. Co. v. Priddy et al., 108 N. E. 238. We therefore are required to consider only the errors assigned by the C., I. & L. Co., which are as follows: (1) The court erred in its conclusions of law as to the C., I. & L. Co., upon the facts found specially by it in said cause. (2) The court erred in overruling the motion of appellant C., I. & L. Co. for a new trial.

It is very earnestly contended by appellees that, on account of its failure to comply with the rules of the court in the preparation of its brief, appellant has presented no question for the consideration of the court. The brief is open to criticism in that it consists in the main of general propositions of law without any attempt to apply them to the particular error relied on. However, the first eleven propositions appear under the heading “Error in Conclusions of Law,” and are, in the main, general principles which are of more or less controlling influence in determining whether the facts found warrant the conclusions of law stated thereon, and hence are sufficient, we think, to advise the court at least as to the main ground upon which such conclusions are challenged. To this extent the propositions set out in the brief will be considered, and the questions presented thereby determined. Indiana Mfg. Co. v. Coughlin (1917, No. 9148), 115 N. E. 260.

The complaint and findings of fact are lengthy, and their substance will be indicated only in so far as we think necessary to an understanding of our disposition of the questions to be considered. To avoid repetition, we will first state certain general facts substantially as they are shown by each paragraph of the complaint, the finding, and the evidence.

At about 4 o'clock p. m. on January 31, 1907, appellees delivered to the N., C. & St. L. Co., at Shelbyville, Tenn., 28 mules in good condition, to be shipped to Huntington, Ind. Said mules were received by said company and placed in a car and shipped over its line of road to Nashville, where they were transferred and delivered in good condition to the L. & N. Co., which company accepted them and carried them over its line of road to Louisville, Ky., where they were delivered to the C., I. & L. Co., which company accepted them and transported them over its line of road to Lafayette, Ind., where it delivered them to the Wabash Co., and it accepted them and carried them over its line of road to Huntington, Ind., their point of destination, where they arrived on February 5th, and were there delivered to appellees.

The through rate agreed upon by the initial carrier and appellees for the transportation of said carload of mules was $113. They were shipped over the entire route in the same car, and were at no time accompanied by any caretaker. The initial carrier refused to permit appellees, or any one for them, to accompany said mules on said trains. Delays in transportation, exposure, neglect and failure to feed, water, and take care of said stock are charged in each paragraph of complaint against the L. & N. Co., the C., I. & L. Co., and the W. Co., and such facts are found by the court against the C., I. & L. Co., substantially as alleged.

Other facts found by the court and authorized by the evidence, affecting appellant and the questions which it seeks to have determined by its appeal, are in substance as follows: Said carload of mules was delivered by the L. & N. Co. to the C., I. & L. Co., at New Albany, Ind., at 1:30 p. m. February 2, 1907, in good condition. They arrived at Bloomington, Ind., between 10 and 11 p. m. of said day. They were unloaded about midnight of same day, given hay and water, and reloaded about 7:30 a. m. on February 3d, at which time they were in good condition. They arrived at Lafayette about 5 p. m. of the same day, where they were taken to the stockyards, unloaded and placed in open pens without covering, where they remained until 9:30 a. m. of the following day, at which time they were again loaded into said car, and the car was sealed and they were permitted to remain in the yards of the company until 2:30 p. m., when they were delivered to the W. Co. Said mules had not been properly and sufficiently fed with hay and grain for a period of more than two days immediately prior to their arrival at Huntington, and by reason thereof were in a starved condition when they arrived. After leaving Bloomington, and while en route to Lafayette, the slats on said car were gnawed and eaten by said mules, one of the slats being gnawed through so that one of the mules got his leg through the opening. Said mule was permitted to remain in this condition until the flesh was torn from its leg and it was partly frozen. When the mules arrived at Huntington and were unloaded the door of the car through which they were to be unloaded was frozen fast in the cinders, which has been used as bedding, and in the offal from said mules. One Hargrove, the local passenger and freight agent of the W. Co., directed appellees Heffner and Shaw to remove the door, by removing the attachments at the top of the door. The door was thus taken down. Hargrove was present while the mules were being removed, and learned and knew at the time the condition of said mules and car. One of the mules was dead and lying on the floor of the car. Another was down, and while down was removed to the platform outside the car and raised to its feet by a derrick. It could not walk without assistance. All the other mules were suffering from want of food and water, and were starved and gaunt. Said mules, because of lack of food, had gnawed and eaten the timbers, slats, and rafters of said car. The tail brushes and manes of many of the mules had been eaten off. Two of the mules that were living when said car reached Huntington were so badly injured by reason of said lack of proper care and attention on the part of the employés and agents of said ...