Colsch v. Chi., M. & St. P. Ry. Co.

• Decision Date: 09 July 1908
• Citation: 117 N.W. 281
• Parties: COLSCH v. CHICAGO, M. & ST. P. RY. CO.
• Court: Iowa Supreme Court

117 N.W. 281

COLSCH

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

July 9, 1908.

Appeal from District Court, Allamakee County; L. E. Fellows, Judge.

This is an action at law for damages, and grows out of a shipment of a car load of cattle by plaintiff over a line of defendant's railway. The case is stated in the opinion. There was a verdict and judgment for plaintiff, and defendant appeals. Affirmed.M. B. Hendrick, H. H. Stilwell, J. C. Cook, and H. Loomis, for appellant.

William S. Hart, for appellee.

BISHOP, J.

Fairly analyzed, the allegations of the petition are that in March, 1900, plaintiff delivered to defendant, a common carrier, at St. Paul, Minn., a car load of cattle in good condition, to be transported to Lansing, this state; that defendant failed in its duty as a common carrier, and in its contract obligations to plaintiff, in that from the time of the undertaking to transport said cattle it failed to exercise the diligence required by law to protect the same from injury by exposure and freezing, and so that, when Lansing was reached, several of the cattle were found frozen to death, and the others were more or less injured from the exposure and freezing; that at all times defendant had notice and knowledge respecting the condition of the cattle, and the injuries being inflicted thereto, notwithstanding which it took no steps to relieve the same from the danger to which they were exposed. And, speaking in detail, it is said that after receipt of the cattle at St. Paul, the defendant transported the car to Newport, a station a few miles distant, where the car was left “standing on a side track, in an unsheltered and exposed position, for a period of several hours, and until said cattle became badly frozen”; that this was against the protest of plaintiff, and against his demand “that said stock be removed from where they were so left, within a reasonable time, and forwarded to their destination, or unloaded and placed in proper shelter.” Defendant in answer denies that the conditions were such at Newport as to make it necessary to unload the cattle, or to treat them otherwise than as they were treated; alleges that the car was forwarded by the first regular train leaving Newport, and carried forward without unnecessary delay. There is then a denial that the cattle were frozen or injuriously affected by the weather while the car stood upon the side track at Newport, or at any other time while in defendant's possession. “And defendant denies that the plaintiff has been damaged by any fault or negligence, or breach of duty, on its part.” Plaintiff offered evidence in chief in proof of these facts: That the cattle were in good condition when loaded in the car; that the loading was completed by 7 o'clock in the evening, when the car was taken by a switch engine to Newport, where it was placed upon a side track and allowed to remain for about four hours before being started on its journey south. As a witness, plaintiff further says that he accompanied the car from the start; that the night was clear and cold, and that it grew colder as it advanced; that the country west and north of Newport is open and flat and of lower elevation than the station, and that a hard wind was blowing from the northwest; that the cattle were severely chilled during the long wait on the side track, and that he tried in vain to find assistance in giving them protection, but there was no one at the station but the telegraph operator, to whom he appealed, but who failed to take any steps to alleviate the condition of distress. He further testified--and without dispute--that live stock loaded in a car suffer more severely from wind and cold when the car is at a standstill than when moving. Also that, as the train in question proceeded south, moderated temperature was experienced. There was then evidence respecting the condition of the cattle when delivered at the place of destination. The defendant offered in evidence a written contract, under which the shipment was made, and in such contract these provisions, among others, appear: That the company shall not be liable for injury arising from delay in transportation; that the owner in charge of stock shall bear all expense of feeding and watering during transportation. Evidence was also introduced respecting the weather conditions at the time, to the conduct of the train from Newport south, and to the condition of the cattle when delivered.

1. In the third instruction given by the court the jury was told, among other things, that “if there was delay in the transportation of the cattle, the defendant was required to use the highest degree of care during the delay for their safety. If the removal of the cattle from the car during the time of the delay, or at any time while in the defendant's possession, was necessary for their protection from injury, and it was possible to remove them, defendant was bound to do so, and was bound to give them whatever presonal attention was necessary for their protection, duringthe whole time the cattle were in possession of defendant.” Counsel for appellant insist that here was error, in that the degree of care imposed was greater than is authorized by law; and, further, that liability was in no wise made to depend upon a finding that the delay was a negligent one. We are not disposed to concur in this view. When a railway company...