Cincinnati, I. St. L.&C. Ry. Co. v. Case

• Citation: 23 N.E. 797, 122 Ind. 310
• Case Date: February 27, 1890
• Court: Supreme Court of Indiana

122 Ind. 310
23 N.E. 797

Cincinnati, I. St. L. & C. Ry. Co.
v.
Case.

Supreme Court of Indiana.

Feb. 27, 1890.

Appeal from circuit court, Benton county; John C. Nelson, Special Judge.

Action by Horace S. Case against the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company. Judgment was rendered for plaintiff, and defendant appealed.

Straight & Wiley and John T. Dye, for appellant. M. H. Walker, J. H. Phares, Daniel Fraser, E. P. Hammond, and W. B. Austin, for appellee.

Coffey, J.

This was an action by the appellee against the appellant to recover damages for negligent delay in shipping

[23 N.E. 798]

appellee's cattle from the town of Fowler to the city of Indianapolis. So much of the contract under which the cattle were shipped as is material to the controversy here is as follows: “Fowler Station, Dec. 11th, 1885. Memorandum of agreement made and concluded this day by and between the Cincinnati, Indianapolis, St. Louis and Chicago Railway Company, of the first part, by the station agent at above-named station, and Jeffrey, Herriott & Co., of the second part, witnesseth, that whereas, the said Cincinnati, Indianapolis, St. Louis and Chicago Railway Company transport cattle, hogs, horses, pigs, sheep, lambs, calves, or other livestock only as per tariff in use at this date for stock per car-loads, or when taken less than car-loads as per special rates, published on the tariff prices: Now, in consideration that the said party of the first part will transport for the party of the second part such live-stock at the rate of $22.00 per car-load, or other valuable considerations, the said party of the second part does hereby agree to take the risk of injury which the animals, or either of them, may receive in consequence of any of them being wild, unruly, weak, escaping, or maiming each other or themselves, or from delays, or in consequence of heat, suffocation, or other ill effects of being crowded in the cars, or on account of their being injured by the burning of hay, straw, or other material used by the owner for feeding stock or otherwise, and for any damages occasioned thereby; and also all risk for damages which may be sustained by reason of any delay in such transportation, and that he will see to it that the cattle, etc., are securely placed in the cars furnished, and that the cars are properly and safely fastened so as to prevent the escape of live-stock therefrom. * * * And this agreement further witnesseth that the said party of the second part has this day delivered to the said Cincinnati, Indianapolis, St. Louis and Chicago Railway Company three car-loads of cattle, to be transported to Indianapolis station on the conditions above described. R. Richmire, Station Agent. H. S. Case.”

The complaint is based upon the above contract, and alleges, in substance, that on the 11th day of December, 1885, at the town of Fowler, the appellee delivered to the appellant, a common carrier of livestock for hire, 51 head of cattle, to be carried by appellant for appellee in three cars from said town of Fowler to the city of Indianapolis, and there to be delivered for the appellee to Jeffrey, Herriott & Co., who were commission merchants, and who were to sell said property for appellee; that appellee agreed to pay appellant $22 per car for transporting said cattle; that, on delivery of said cattle as aforesaid, appellant executed and delivered to appellee a bill of lading for said cattle, a copy of which is filed with the complaint; that appellee performed all the conditions of said bill of lading on his part, but that appellant did not perform the conditions of said bill of lading on its part, in this, to-wit, that said appellant, after receiving said cattle on board its cars at...