Cook v. Chicago, Rock Island & Pacific Ry. Company

• Decision Date: 05 January 1907
• Docket Number: 14,621
• Citation: 110 N.W. 718,78 Neb. 64
• Parties: ROBERT F. COOK ET AL., APPELLEES, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

110 N.W. 718

78 Neb. 64

ROBERT F. COOK ET AL., APPELLEES, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT

No. 14,621

Supreme Court of Nebraska

January 5, 1907

APPEAL from the district court for Pawnee county: WILLIAM H KELLIGAR, JUDGE. Affirmed.

AFFIRMED.

M. A Low, L. M. Pemberton and Hazlett & Jack, for appellant.

Stewart & Munger, contra.

OLDHAM C. AMES and EPPERSON, CC., concur.

OPINION

OLDHAM, C.

This was an action to recover damages against the defendant railway company for its failure to properly transport fifteen car-loads of sheep from Roswell, Colorado, to South Omaha, Nebraska, and Chicago, Illinois. The negligence relied on 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 plaintiff's request, stop the train at proper places on its line of railway 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 and 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 stock yards, 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 shipment from Hailey, Idaho, but alleged that a new contract was signed with the defendant when the shipment reached Roswell, Colorado, 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 attention in 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 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, 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 on 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 railway; 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, Colorado, or at Tennessee Pass, a point further east on the route, and at Goodland, Kansas, and at either Belleville, or MacFarland, Kansas, 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 inquired if the facilities were the same as then existed, and was assured by Mr. Fox that they were. This witness described the ample facilities which were afforded him the year before for feeding and watering at this place. After the conversation with Mr. Fox the contract for shipment was entered into, and on the 22d day of June, 1901, the sheep were loaded at Hailey and conveyed to Grand Junction, Colorado, where they were unloaded and rested, and where proper facilities for feeding and watering are conceded to have been furnished. After a proper rest at this point the sheep were reloaded and conveyed, by a run of about 28 hours, to Roswell, Colorado, where the shipment was transferred to defendant's line of railway. The evidence introduced by the defendant tends to show that there were at least some facilities for feeding and watering at...