Cincinnati, N.O. & T.P. Ry. Co. v. Veatch

• Decision Date: 14 January 1915
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. VEATCH. [d1]
• Court: Kentucky Court of Appeals

172 S.W. 89

162 Ky. 136

CINCINNATI, N. O. & T. P. RY. CO. v. VEATCH. ^[d1]

Court of Appeals of Kentucky.

January 14, 1915

Appeal from Circuit Court, Mercer County.

Action by J. T. Veatch against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

E. H Gaither, of Harrodsburg, for appellant.

C. E Rankin, of Harrodsburg, for appellee.

HANNAH J.

J. T Veatch delivered to the Cincinnati, New Orleans & Texas Pacific Railway Company, at Somerset, on December 5, 1912, 9 hogs, 1 bull, 29 head of cows, and 4 calves, which shipment was accepted by the carrier, and a contract entered into for its delivery at Cincinnati. On April 24, 1913, Veatch sued the railway company in the Mercer circuit court to recover damages for injuries to the live stock so shipped, and upon a trial, there was a verdict and judgment for $266. The railway company appeals.

1. It was alleged in the petition that the cattle were injured in a wreck, and appellant contends that, having pleaded that the cattle were so injured, and having failed to prove the charge, the plaintiff was not entitled to a recovery.

The well-settled Kentucky rule is that, where a shipment of live stock is accompanied by the owner or his agent, and injury results during transit, the burden is upon the owner to show how the injury occurred--i. e., whether it was caused by some actionable negligence upon the part of the carrier; but, where the live stock is not accompanied by the owner or his agent, and injury results during transit, then, when the owner shows that the live stock was in good condition when delivered to, and accepted by, the carrier for shipment, and was in a damaged or injured condition when delivered by the carrier to the consignee at the place of destination, the burden shifts; and, unless the carrier can show that the injury was due to the inherent nature, propensities, or viciousness of the animals, the fact of injury is taken as prima facie evidence of actionable negligence upon the part of the carrier in the transportation thereof. I. C. R. R. Co. v. Word, 149 Ky. 229, 127 S.W. 949; McCampbell, etc., v. L. & N. R. Co., 150 Ky. 723, 150 S.W. 987; L. & N. R. Co. v. McClintock, 151 Ky. 455, 152 S.W. 253; I. C. R. R. Co. v. Howard, 152 Ky. 308, 153 S.W. 427; L. & N. R. Co. v. Cecil, 155 Ky. 170, 159 S.W. 689; C., N. O. & T. P. R. Co. v. Smith, 155 Ky. 481, 159 S.W. 987.

Under this rule, as plaintiff did not accompany the shipment, it was sufficient for the plaintiff to allege and prove the delivery to, and acceptance by, the carrier of the live stock, in good condition, and that the carrier failed to deliver the same at destination in like condition. It then devolves upon the carrier to show that the injuries were due to the act of God or the public enemy, or to the inherent nature and qualities of the live stock, or to the act or fault of the shipper himself. Unless the carrier can show this, it is liable for loss or injury, regardless of whether it was negligent or not. It was therefore surplusage for the plaintiff to allege in his petition any negligence upon the part of the carrier. L., H. & St. L. R. Co. v. S. S. H. & C. Co., 157 Ky. 772, 164 S.W. 90.

2. It was shown in evidence for the defendant company that the bull and the 9 hogs were loaded in one compartment of a stock car the bull being tied, and the cows and calves loaded in another compartment of the car; that they were loaded a short time before 3:15 p. m., the hour at which the train was due by which the car was expected to be moved; that on the day in question, however, the train was delayed, and that between 4 and 5 o'clock, sectionmen working in the vicinity discovered a commotion among the cattle in the car; that, upon investigation, it was disclosed that one of the cows was fighting the others, and that the noncombatants were huddled together in one end of the car; that the men got the cattle quieted down and left them; that none of them at that time had been injured apparently, except that one of the calves was down; that shortly after 5 o'clock the yard foreman, hearing a tumult in the car, notified the railroad agent, and they went together to the car; that they found the militant cow still fighting, and the remainder of the cows huddled and entangled and piled together in the end of the car; that the crew of sectionmen was sent for, and the cattle unloaded from the car. That 7 cows and 3 calves were either dead or so badly injured that it was...