Cook v. Chi., R. I. & P. Ry. Co.

• Decision Date: 05 January 1907
• Citation: 110 N.W. 718,78 Neb. 64
• Parties: COOK ET AL. v. CHICAGO, R. I. & P. RY. CO.
• Court: Nebraska Supreme Court

78 Neb. 64

110 N.W. 718

COOK ET AL.

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Nebraska.

Jan. 5, 1907.

Syllabus by the Court.

Evidence examined, and held sufficient to sustain the judgment of the trial court under the instruction given.

Where an instruction of the trial court is concurred in by each of the parties to the action, it will be treated on review as the law of the case.

Contributory negligence is an affirmative defense, which must be pleaded, and ordinarily involves questions of fact for the determination of the jury.

A condition in a contract for the shipment of live stock by a railroad company, which provides that, unless claims for loss, damage, or detention are presented within 10 days from the date of the unloading of said stock at destination and before said stock has been mingled with other stock, such claims shall be deemed to be waived, and the carriers and each thereof shall be discharged from liability, is in violation of the prohibition of section 4, art. 11, of the Constitution of Nebraska.

The statutes and Constitution of another state or territory cannot be proved by parol, under the provisions of section 1381, Cobbey's Ann. St. 1903.

In the absence of proof to the contrary, the Constitution and laws in force in this state will be presumed to have been in force at the place of the making of the contract which is in issue.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Pawnee County; Kelligar, Judge.

Action by Robert F. Cook and others against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs. Defendant appeals. Affirmed.M. A. Law and Hazlett & Jack, for appellant.

Stewart & Munger, for appellees.

OLDHAM, C.

This was an action to recover damages against the defendant railway company for its failure to properly transport 15 car loads of sheep from Roswell, Colo., to South Omaha, Neb., and Chicago, Ill. The negligence relied upon consists in not furnishing proper facilities to plaintiffs for feeding and watering their sheep at convenient places along the line of shipment. The answer of the defendant admitted that it conveyed the sheep between the points named in the petition, and alleged that it did so with proper dispatch, and that it did, at plaintiffs' request, stop the train at proper places on its line of railroad for plaintiffs to feed and water the sheep. The answer also pleaded that defendant took the sheep under a written contract for an interstate shipment from Hailey, Idaho, to the points of destination, and that this contract included the conveyance of the sheep over a portion of the lines of the Oregon Short Line, the Denver & Rio Grande Railroad, as well as the line of the defendant; that the written contract entered into was valid where made, and provided for a lower rate than the regular tariff rates of transportation. The conditions of the contract pleaded, which are material to the present controversy, are as follows: “The shipper agrees to load, unload, and reload all said stock at his own expense and risk, and to feed, water, and tend the same at his own expense and risk while it is in any stockyards, whether the same be operated, owned, or controlled by said carriers or otherwise, and while on the cars or at feeding points or at any place where the same may be unloaded for any purpose whatever. * * * The shipper expressly agrees to load, unload, and care for said stock while upon the cars or premises of the carriers, in a careful and humane manner, in strict compliance with the laws of the United States, and of each and every state through which said stock may be transported. * * * Unless claims for loss, damage, or detention are presented within ten days from the date of the unloading of said stock at destination and before said stock has been mingled with other stock, such claims shall be deemed to be waived, and the carriers and each thereof shall be discharged from liability.” The reply of the plaintiffs admitted the signing of the contract with the Oregon Short Line Company at the time of the shipment from Hailey, Idaho, but alleged that a new contract was signed with the defendant when the shipment reached Roswell, Colo., and denied each and every other allegation in the answer, except such as admitted the allegations of the petition. On issues thus joined there was a trial to the court and jury, a verdict for the plaintiffs, and judgment on the verdict. To reverse this judgment, defendant appeals to this court.

The first alleged error called to our attentionin the brief of the appellant is that “the verdict is contrary to law as given by the court.” This contention rests on the proposition that the trial court, in the seventh paragraph of instructions given on its own motion, correctly stated the law governing defendant's liability under the contract for furnishing proper facilities to plaintiffs for feeding and watering the sheep while in transit, and that there is not sufficient evidence in the record to support a verdict under this instruction. The instruction given is as follows: “It was the duty of the defendant to use reasonable care to provide reasonable facilities for both feeding and watering said sheep at the stations along the line of its road, and any failure in the reasonable performance of that duty would be negligence on the part of the defendant. On the other hand, under the written contract entered into by the plaintiffs with the Oregon Short Line Railway, it was the duty of the plaintiffs to feed, water, and care for said sheep, and it was not the duty of the defendant company to furnish feed and water; and if the defendant company, at the times requested by the plaintiffs, gave the plaintiffs opportunity to unload, care for, feed, and water said sheep, and provided plaintiffs with reasonable facilities for so doing, then the defendant company performed its full duty to the plaintiffs. You are further instructed that in connection with this said contract that its terms, in so far as they are set out in defendant's answer, are admitted by the plaintiffs' reply, and the terms in said contract are presumed to continue in force in the absence of evidence that they were changed or modified by a subsequent contract between the plaintiffs and defendant in this case, and the same inures to the benefit of each and every carrier over whose line the said sheep were carried and passed over, and the defendant railway company, from the evidence, the court instructs you, was a connecting carrier in this instance.” As this instruction is relied upon by defendant as a proper direction to the jury of all the elements entering into defendant's liability to plaintiffs for furnishing proper facilities for feeding and watering the sheep under the contract of shipment, and as it was not excepted to by the plaintiffs when given, we will, for the purpose of the conclusion to be reached, regard it as the settled law of the case and examine into the sufficiency of the testimony to support a verdict under it.

It is without dispute that the contract for the shipment of the sheep from Hailey, Idaho, was procured through the solicitation of Eugene Fox, one of the traveling freight agents of the defendant railway company. It is also in evidence that the plaintiffs, who were extensively engaged in feeding and shipping sheep, had never before shipped to the points in controversy from Idaho over these lines of railroad, but that they had heretofore shipped to points east over the Union Pacific lines of railroad; that Fox, as an inducement for shipment over the route in controversy, represented to one of the plaintiffs that convenient and proper places for feeding and watering the sheep were provided at Grand Junction, Colo., or at Tennessee Pass, a point further east on the route, and at Goodland, Kan., and at either Belleville, or MacFarland, Kan.; and that pasture and green feed could be obtained at these places. It is also in evidence that one of the plaintiffs in shipping from the state of Kansas had fed and watered his shipment of stock at Belleville, in that state, the year before, and that he...