Cleve v. Chi., B. & Q. Ry. Co.

• Decision Date: 21 September 1906
• Court: Nebraska Supreme Court
• Parties: CLEVE v. CHICAGO, B. & Q. RY. CO.

77 Neb. 166

108 N.W. 982

CLEVE

v.CHICAGO, B. & Q. RY. CO.

Supreme Court of Nebraska.

Sept. 21, 1906.

Syllabus by the Court.

In an action to recover damages from a carrier for injury sustained by livestock in transit, which are accompanied by the owner, or his agents, the burden is on the owner to show that the loss complained of was occasioned by the carrier's negligence.

In order to recover damages for an alleged delay in the shipment of livestock, it is necessary to introduce some competent evidence tending to show the length of time ordinarily required to transport the shipment from the place where received to the point of delivery, and that a longer time was actually consumed than was necessary for that purpose. Johnston v. C., B. & Q. Ry. Co. (Neb.) 97 N. W. 479, followed and approved.

Evidence examined, and held insufficient to sustain the judgment of the trial court.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Otoe County; Jessen, Judge.

Action by Richard Cleve against the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. W. Deweese, Frank E. Bishop, and John C. Watson, for appellant.

W. W. Wilson, for appellee.

OLDHAM, C.

This was an action for damages instituted by the plaintiff in the court below against the defendant railway company for the loss of two fat steers in a shipment of cattle from Nebraska City to Chicago. The cattle were shipped on the 8th day of August, 1899, and it was charged in the petition that the cattle died from overheat on account of delay in the shipment. Defendant's answer was in the nature of a general denial and plea of the statute of limitations. The cause was submitted to the court, without the intervention of a jury, and at the close of the evidence judgment was entered for plaintiff. To reverse this judgment defendant appeals to this court.

Several alleged errors in the proceeding are called to our attention in the brief of the railway company, only one of which, however, it will be necessary to examine, in view of the conclusion about to be reached, and that one is that the evidence is not sufficient to sustain the judgment of the trial court. The testimony offered by plaintiff in the court below tended to show that on the 8th day of August, 1899, he shipped, under contracts entered into with the Burlington & Missouri River Railroad in Nebraska, eight car loads of stock from Nebraska City to Chicago. The stock were accompanied by two tenders during the entire shipment, and plaintiff himself accompanied the stock as far as Shenandoa, Iowa, at which point he took a passenger train to Chicago, the place of destination.

It appears from the testimony that the weather was hot when the shipment was made, but that all the stock were loaded in good condition, in suitable cars, properly bedded, at Nebraska City, at about 1 or 2 o'clock in the afternoon, on the day of the shipment. It further appears from the testimony that two stops were made between Nebraska City and Hamburg, Iowa, where the shipment was transferred from the branch to the main line of the road. Plaintiff and one of his tenders, McCarthy, testify that when the train reached Hamburg it remained on a side track between two rows of box cars for about 30 or 40 minutes, and that the cattle became heated by reason of the fact that the box cars prevented the air from circulating through the stock cars. There is no competent evidence, however, that complaint was made either to the conductor of the train, or to the station agent, of this delay, nor is there any testimony that the delay was unnecessary and unusual. Plaintiff does say that he told the tenders to tell the conductor to move the train or the cattle would suffer from the heat. Mr. McCarthy, the only tender who testified, admitted that he did not notify the conductor of the train of the probable injury from this delay, or request him to move either the train or the box cars that impeded the circulation of the air. He thought, according to his testimony, that Mr. Cleve, the owner of the cattle, had entered complaint. On the other hand, the conductor in charge of the train denied that any complaint was made to him of the delay at Hamburg, or that the delay there was unnecessary or for a longer time than was required to water and take on another car. It is shown in the evidence that one steer got down at Hamburg and that this steer was dead when the train reached Stanton, about 7 o'clock in the evening. It is also in evidence that another steer got down near Stanton, and that this steer died shortly after the shipment was received in Chicago. There is no evidence in the record as to when the shipment, on schedule time, should have arrived in Chicago. Plaintiff. however, testified that it was a show shipment and stopped at all the stations, but there is no evidence that the stopping at each station was unnecessary or unusual in the transportation of livestock from Nebraska City to Chicago. There is no complaint of any failure to feed or water the cattle during the shipment, and it is admitted that the two attendants of the cattle were furnished with transportation by the company under the contracts of shipment. In fact, the cattle were shipped...