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

• Decision Date: 09 July 1910
• Citation: 149 Iowa 176,127 N.W. 198
• Court: Iowa Supreme Court
• Parties: COLSCH v. CHICAGO, M. & ST. P. RY. CO.

149 Iowa 176

127 N.W. 198

COLSCH

v.CHICAGO, M. & ST. P. RY. CO.^d1

Supreme Court of Iowa.

July 9, 1910.

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

Action at law to recover damages sustained by plaintiff in the shipment of a car load of cattle over defendant's line of railway. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. Reversed.

See, also, 117 N. W. 281.

Evans and Weaver, JJ., dissenting.M. B. Hendrick, H. H. Stilwell, J. C. Cook, and H. Loomis, for appellant.

Wm. S. Hart, for appellee.

DEEMER, C. J.

The petition alleges, in substance: 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. It is specifically alleged 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 denied the negligence specifically charged; denied that the conditions were such as to make it necessary to unload the cattle or treat them otherwise than it did; alleged that the car was forwarded by the first regular train leaving Newport, and carried forward without unnecessary delay. It also denied that the cattle were frozen or injuriously affected by the weather while they stood upon the side track or at any other time while in defendant's possession, “and denied that plaintiff has been damaged by any fault or negligence or breach of duty on its part.”

In order to make out his case under these issues plaintiff introduced testimony to show 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, as to the conduct of the train from Newport south, and as to the condition of the cattle when delivered. The testimony for defendant tended to show that the damages to plaintiff's stock could not have been due to weather conditions, or to the conduct of the train from Newport southward on defendant's line.

The trial court, in view of this testimony and the issues tendered by the pleadings, gave the following, among other, instructions: “If there was delay in the transportation of the cattle, the defendant was required to use the highest degree of care duringthe 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 personal attention was necessary for their protection, during the whole time the cattle were in possession of defendant. When the defendant contracted to carry the cattle to their destination, the law imposed upon it an obligation to carry them in a proper manner, and deliver them in good condition, considering the ordinary perils of the road; and if it failed to deliver them in such condition, it is responsible in damages for such failure, unless it can excuse itself by showing that the damage was caused by some condition beyond its power to know of and prevent.”

These instructions are challenged by defendant for the reason that they imposed upon defendant the highest degree of care known to the law, whereas, under the facts disclosed by the record, nothing more than ordinary care was required. It must be borne in mind that there was no negligent delay in the shipment of the cattle. They were taken on defendant's first regular train leaving Newport after their arrival at that point, and it is not claimed that defendant's train schedules were inadequate, or that the animals should have gone forward from Newport at an earlier hour than they did. It is defendant's treatment of the cattle while at Newport, awaiting the arrival of a south-bound train, which is relied upon as a ground for recovery. Plaintiff says that defendant was negligent in its care of the cattle at this point, while defendant denies it. The trial court instructed that defendant's duty was to exercise the highest degree of care in the safety of the cattle, and that it could not excuse itself, except by showing that the damage was caused by some conditions which were beyond its power to know of and prevent. As already observed, this is not a case where the carrier is charged with delay in the shipment of the stock; nor is plaintiff relying upon the presumptions arising where one shows the delivery of property in good condition to a carrier and a redelivery by the carrier to the shipper of the goods in a damaged condition. Here plaintiff pleaded and attempted to prove defendant's negligent treatment of the cattle while at Newport, and the degree of care which the law imposed upon it in caring for the stock during the delay was an incident of the shipment. In this connection it must be remembered that plaintiff accompanied his stock, was with them at Newport, and, as he says, notified defendant's employés of the dangers incident to the change in climatic conditions.

As we understand it, the degree of care required of a carrier under such circumstances is not the highest, but ordinary and reasonable, care, such care as an ordinarily careful person would exercise under the same or similar circumstances. See, as supporting this rule, German v. R. R. Co., 38 Iowa, 127;Beard v. R. R. Co., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381;Peterson v. Ry. Co., 19 S. D. 122, 102 N. W. 595; McGraw v. R. R. Co., 18 W. Va. 361, 41 Am. Rep. 696; Truax v. Philadelphia R. R. Co., 3 Houst. (Del.) 233; Peck v. Weeks, 34 Conn. 145; Chapin v. R. R. Co., 79 Iowa, 582, 44 N. W. 820. It is generally held that where goods of a perishable nature are injured or practically destroyed by a sudden and unexpected freeze, or from other cause of a like nature, the carrier is not liable in the absence of a showing of negligence on its part. If the transportation is being carried on at a season of the year and in a locality where a freezing spell is, in the nature of things, probable, the carrier will be held liable for loss or injury to perishable goods caused by their being frozen only when common prudence would have required it to anticipate such weather conditions as were probable, and to provide against them by sheltering the goods. Ordinary care and prudence upon its part is all that is required. See, as supporting this view, Vail v. Pacific R. R. Co., 63 Mo. 230;Swetland v. Boston R. R. Co., 102 Mass. 276;American Express Co. v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561;Nashville R. R. Co. v. David, 6 Heisk. (Tenn.) 261, 19 Am. Rep. 594. See, also: Chicago R. R. v. Woodward, 164 Ind. 360, 72 N. E. 558, 73 N. E. 810;Black v. C., B. & Q. R. R., 30 Neb. 197, 46 N. W. 428;Ill. Cent. R. R. v. Holt (Ky.) 92 S. W. 540; Maslin v. B. & O. R. R., 14 W. Va. 180, 35 Am. Rep. 748; Nashville R. R. v. Jackson, 6 Heisk. (Tenn.) 271;Parsons v. Hardy, 14 Wend. (N. Y.) 215, 28 Am. Dec. 521;Vencill v. R. R., 132 Mo. App. 722, 112 S. W. 1030.

One of the leading cases on this subject is St. Louis Co. v. Brosius, 47 Tex. Civ. App. 647, 105 S. W. 1131, from which we quote the following: “If a burden rested upon appellant to account for the original of the disease and to show absence of negligence on its part, then the court properly...