Cincinnati, N.O. & T.P. Ry. Co. v. Smith & Johnston

• Decision Date: 24 October 1913
• Citation: 155 Ky. 481,159 S.W. 987
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. SMITH & JOHNSTON.
• Court: Kentucky Court of Appeals

159 S.W. 987

155 Ky. 481

CINCINNATI, N. O. & T. P. RY. CO. v. SMITH & JOHNSTON.

Court of Appeals of Kentucky.

October 24, 1913

Appeal from Circuit Court, Boyle County.

Action by Smith & Johnston against the Cincinnati, New Orleans &amp Texas Pacific Railway Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Charles H. Rodes and Nelson D. Rodes, both of Danville, and John Galvin, of Cincinnati, Ohio, for appellant.

Charles C. Fox, of Danville, for appellee.

MILLER J.

The appellees, Smith & Johnston, instituted this action to recover $889.59, damages growing out of four different shipments of live stock from Danville, Ky. to Cincinnati Ohio, and one shipment to Jersey City, N. J., on and between October 12, 1911, and January 30, 1912. There was a peremptory instruction for the defendant as to the shipment of January 13, 1912, and the appellees do not complain of that ruling. A jury trial of the issues relating to the other four shipments resulted in a verdict and judgment in favor of the plaintiffs for $623.61, and from that judgment the defendant appeals.

The appellees are stock traders, engaged in the buying of live stock from the farmers of Boyle and adjacent counties, and shipping the same principally to the Cincinnati market for sale. As each shipment constituted a separate and distinct transaction, it will be necessary to consider them separately.

1. On October 12, 1911, appellees bought 118 hogs from four farmers in Boyle county, and drove them to Danville, where they were placed in the stock pens of the appellant the same day. They were loaded in the live stock freight car between 4 and 5 o'clock in the afternoon. At that time the hogs were all in good condition, and no one representing the appellees attended them upon the journey. The car reached the Union Stockyards, in Cincinnati, about 6 o'clock on the morning of October 13th, and was unloaded at 7:30 o'clock, in time for that day's market. Two of the hogs were found dead in the car. Their bodies presented no evidence that they had been cut, bruised, or injured in any way; the appellant's theory being that some of the other hogs piled upon them and smothered them.

The rule applicable to such cases in Kentucky is that, when no one accompanies the stock, the shipper makes out a prima facie case when he shows that the animals were in good condition when delivered to the carrier, and in a damaged or injured condition when delivered by the carrier to the consignee; and thereupon the burden is cast upon the carrier to explain the cause of the injury to the stock, and the carrier can only exempt himself from liability by showing that the injury or death was brought about by the act of God, or because of the inherent nature, propensities, or viciousness of the animals themselves. L. & N. R. R. Co. v. Pedigo, 129 Ky. 665, 113 S.W. 116; I. C. R. R. Co. v. Word, 149 Ky. 229, 147 S.W. 949; McCampbell v. L. & N. R. R. Co., 150 Ky. 723, 150 S.W. 987.

As no one representing the shipper accompanied the stock in this instance, and the good condition of the hogs was shown at the point of shipment, and the death of two of them at the destination, the only question of fact to be determined by the jury was whether the death of the two hogs was caused by the inherent nature or some propensity or viciousness of the hogs in the car.

The trial court undertook to submit that question to the jury in instruction No. 1, which reads as follows: "As to the matters set forth in paragraph 1 of the petition in this case, the court instructs you that, unless you believe from the evidence in this case that the two hogs mentioned in said paragraph died from some inherent defect in said hogs, then you will find for the plaintiff, the value of said hogs, not to exceed the sum of $16.31; and, unless you so believe, you will find for defendant." Appellant contends that this instruction told the jury they must believe there was an inherent "defect" in the two hogs that died or were killed before they could find a verdict for the defendant, and that the instruction was erroneous in two respects, because it advised the jury that before they could find for the defendant they must find, first, the existence of an "inherent defect" in the two hogs admitted to be healthy and sound when shipped, and, secondly, that the two hogs must have died from the inherent defect.

It is argued that the instruction is misleading, in that it predicated defendant's right to a verdict upon the absence of defects in the two hogs, when the proof was uncontradicted that all the hogs were healthy and sound. Appellant insists that it never contended that the two hogs, which died, caused their own death, but that some of the other 116 hogs caused their death, and that the jury should have been told to find for appellee, unless they believed from the evidence that the death of the two hogs was caused by their own inherent nature, propensities, or viciousness, or by the inherent nature, propensities, or viciousness of the hogs that were being carried along with the two that died.

In Kentucky the rule in such cases is well established.

In L. & N. R. R. Co. v. Pedigo, 129 Ky. 666, 113 S.W. 116, we said: "So in Kentucky the rule is, at the common law, that a railroad company or other common carrier undertaking to transport live stock becomes an insurer of its safe delivery, except where injury to or the loss of such live stock results from the act of God or the public enemy, or from the inherent nature, propensities, or viciousness of the animals themselves." Southern Express Co. v. Fox & Logan, 131 Ky. 265, 115 S.W. 184, 117 S.W. 270, 133 Am. St. Rep. 241; B. & O. S.W. R. R. Co. v. Clift, 142 Ky. 575, 134 S.W. 917; I. C. R. Co. v. Word, 149 Ky. 229, 147 S.W. 949; McCampbell v. L. & N. R. R. Co., 150 Ky. 723, 150 S.W. 987--are to the same effect.

Attention has been called to the fact that in I. C. R. Co. v. Word, 149 Ky. 229, 147 S.W. 949, we used the general expression "inherent vice" of the animal in stating the rule of the Pedigo Case, and that the Word Case is a departure from the rule as announced in the Pedigo and similar cases. No such purpose, however, was intended, as will be seen from a careful reading of the opinion in the Word Case. The words "inherent vice," as applied to animals, were there used as a short equivalent for their inherent nature, propensities, or viciousness; they were not used to indicate or embrace a defect unaccompanied by the inherent nature, propensity, or viciousness of the animals.

The first instruction above set forth was misleading, and did not correctly give the law as embodied in the cases above cited. Instead of predicating the appellant's nonliability upon the fact that the two hogs "died from some inherent defect in said two hogs," they should have been instructed to find for the plaintiff unless they believed from the evidence that the death of the two hogs resulted from their own inherent nature, propensities, or viciousness, or from the inherent nature, propensities, or viciousness of the other hogs that were being carried with them in the car.

The giving of instruction No. 1 was error, and upon a retrial of the case, if the evidence be the same, the instruction under this paragraph should be along the lines above indicated.

2. The second shipment consisted of 52 head of cattle, and was made on November 20, 1911. The cattle were driven from the county to Danville, arriving there a little before noon of that day, when they were placed in appellant's stock pens. About 3 o'clock that afternoon, Johnston and Kimberlain loaded the cattle in two ordinary live stock freight cars, and consigned them to Jersey City, N. J. An hour later the stock left Danville for Cincinnati, and arrived at the Union Stockyards at 8 o'clock a. m. the next morning, where they were unloaded and fed. The cattle were in good condition when they were loaded at Danville, but after they had been unloaded, and while they were in the pens of the Union Stockyards in Cincinnati, either on the day of their arrival, or the next day, Kaus, the salesman for J. P. Sadler & Co., a commission firm, discovered that two of the cattle were "down," were badly bruised, and greatly depleted in flesh. He removed the two injured cattle, and sold them at $3.50 per hundred pounds. Kaus testified that if those cattle had been in first class condition they would have brought $6 per hundred pounds, and gave it as his opinion that the cattle were bruised by being tramped upon by other cattle. Another witness, Schneider, says one of the herd was unable to walk to the pen upon its arrival in Cincinnati.

As no one representing the shipper accompanied the cattle, this case comes within the rule heretofore laid down, which throws upon the carrier the burden of explaining the cause of the injury, and holds it liable, unless it can show that the injury was due to the inherent nature or some propensity or viciousness of the animals carried. Appellant did not satisfy this requirement by its proof. It offered no evidence upon this point. It insists, however, that it was entitled to a peremptory instruction because the plaintiff's proof did not show that the cattle were injured when they reached the stockyards in Cincinnati, but that the evidence only showed the injury at a later time, and when the cattle were in the pens of the Union Stockyards. The court declined to give the peremptory instruction and instructed the jury along the lines indicated in the Pedigo Case. Appellant's motion for a peremptory instruction was properly overruled, since the cattle were in appellant's custody and control enroute to Jersey City, N. J., and had been unloaded at the Union Stockyards in Cincinnati, by the appellant, for...