Cleve v. Chicago, Burlington & Quincy Railway Company
| Decision Date | 21 September 1906 |
| Docket Number | 14,408 |
| Citation | 108 N.W. 982,77 Neb. 166 |
| Parties | RICHARD CLEVE, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Otoe county: PAUL JESSEN, JUDGE. Reversed.
REVERSED.
J. W Deweese, Frank E. Bishop and John C. Watson, for appellant.
W. W Wilson, contra.
OLDHAM C. AMES and EPPERSON, CC., concur.
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 the 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 carloads 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 Shenandoah, 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 sidetrack 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 slow 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 live stock 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 under three contracts, by consent of the agent of the defendant, in order that transportation might be furnished to plaintiff and his two tenders, who accompanied the cattle.
Now the question arises as to whether or not this evidence is sufficient to show actionable negligence on the part of the defendant railway company. The authorities are not exactly uniform on the question as to whether or not the...
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