Cooper v. Oregon Short Line Railroad Co.

Decision Date16 December 1927
Docket Number4777
PartiesJ. W. COOPER, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
CourtIdaho Supreme Court

CARRIER OF LIVESTOCK-NEGLIGENCE-LIABILITY-EVIDENCE-RIGHT TO JURY - QUESTION FOR COURT - PROXIMATE CAUSE - APPEAL AND ERROR-REVERSAL-VERDICT-MOTION FOR DIRECTED VERDICT-NEW TRIAL - HABITS OF ANIMALS-JERKING OF RAILROAD CARS-JUDICIAL NOTICE - STOCK ACCOMPANIED BY CARETAKER - BURDEN OF PROOF.

1. Right of party to have jury pass upon question of liability is fixed and absolute one, where circumstances are in dispute and evidence conflicting or when proof discloses such state of facts that in attempting to fix responsibility for injury different minds may honestly arrive at different conclusions.

2. Where there is substantial evidence to support verdict it must not be disturbed on appeal.

3. Question of carrier's negligence in transporting livestock could be passed upon by court only if there was no evidence to warrant verdict for plaintiff shipper.

4. A motion for a directed verdict ought to be granted when plaintiff has shown nothing to establish his claim of carrier's negligence in transporting livestock.

5. Mere conjecture and speculation cannot be indulged in to establish negligence of carrier in transporting livestock.

6. Court can take judicial notice of habits and propensities of animals.

7. It is a matter of common knowledge that horses strange to each other frequently fight when brought into close contact.

8. When shipper or his caretaker accompanies a shipment of livestock under contract to care for them en route, burden of proving negligence resulting thereto rests upon him.

9. A carrier is not liable for injuries resulting to animals from their natural propensities nor from attacks from other animals in same car.

10. Where shipment of animals is made accompanied by caretaker proof of injuries to such livestock is not alone sufficient to establish negligence.

11. In action for damages for injury to shipment of horses, where it did not appear that car containing horses was at any time while at town where injuries occurred in position where shipper or his caretaker, accompanying shipment, could not and did not have it under observation, it was incumbent upon shipper to establish such fact before burden of proof shifted to carrier to show its lack of negligence.

12. In action for damages for injury to shipment of horses plaintiff's statement that trainmen were switching and jamming car containing horses around was not sufficient to establish carrier's negligence, since a jerk of a freight train of itself is not evidence of negligence.

13. It is a matter of common knowledge, of which courts take judicial notice, that in ordinary handling of trains there is more or less jamming and jolting necessary, and this is not negligence per se.

14. To constitute "negligence" on part of carrier jerking, jolting or jamming of freight-car must have been accomplished with unusual severity or violence and not have been ordinary train movements.

15. Court can pass on question of negligence as matter of law only when all reasonable men would construe facts in same way.

16. In action for damages for injury to shipment of horses accompanied by caretaker, evidence of carrier's negligence in handling car containing horses held insufficient to go to jury.

17. Where a party is entitled to have a verdict directed in his favor at close of evidence, and case is reversed on his appeal, a new trial will not be ordered.

APPEAL from the District Court of the Eleventh Judicial District, for Minidoka County. Hon. T. Bailey Lee, Judge.

Action for damages for injury to shipment of livestock. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded, with directions. Costs to appellant. Petition for rehearing denied.

George H. Smith, H. B. Thompson and J. H. McEvers, for Appellant.

Where negligence is the gravamen of the action, the burden of proving negligence is on the party asserting it, and this is especially true in an action growing out of a shipment of livestock where the plaintiff or his agents accompanied the shipment. (Lane v. Oregon Short Line R. Co., 34 Idaho 37, 15 A. L. R. 197, 198 P. 671; Crabill v. Oregon Short Line R. Co., 34 Idaho 251, 200 P. 121; Barrett v. Van Pelt, 268 U.S. 85, 45 S.Ct. 437, 69 L.Ed. 857; Southern Ry. Co. v. Prescott, 240 U.S. 632, 640, 36 S.Ct. 469, 60 L.Ed. 836; Terre Haute & Indianapolis R. Co. v. Sherwood, 132 Ind. 129, 32 Am. St. 239, 31 N.E. 781, 17 L. R. A. 339; Hickey v. Chicago, B. & Q. R. R. Co., 174 Mo.App. 408, 160 S.W. 24.)

Mere proof of jerking or jamming is not proof of negligence. (Payne v. Crawford, 207 Ala. 698, 93 So. 655; sec. 2, Safety Appliance Act of Mar. 2, 1893, 27 Stats. at L. 531, 8 F. Stats. Ann. 1161; Atlantic Coast Line R. Co. v. Carroll Mercantile Co., 206 Ala. 320, 89 So. 509; Hogg v. Kansas City etc. R. Co., 139 La. 972, 72 So. 705; Foley v. Boston & Maine R. R., 193 Mass. 332, 79 N.E. 765, 7 L. R. A., N. S., 1076; Ottinger v. Detroit United Ry., 166 Mich. 106, Ann. Cas. 1912D, 578, 131 N.W. 528, 34 L. R. A., N. S., 225; Wile v. Northern P. Ry. Co., 72 Wash. 82, 129 P. 889, L. R. A. 1916C, 355.)

Proof of injury is not proof of negligence. (Atlantic Coast Line R. Co. v. Carroll Mercantile Co., supra; Beeler v. Atchison, T. & S. F. Ry. Co., 107 Kan. 522, 192 P. 741; Yazoo & M. V. R. Co. v. Cox (Miss.), 40 So. 547; Lewis v. Pennsylvania R. Co., 70 N.J.L. 132, 1 Ann. Cas. 156, 56 A. 128; Southern R. Co. v. Moore, 108 Va. 388, 61 S.E. 747; State v. Widman, 112 Miss. 1, 72 So. 782.)

Negligence is not actionable unless shown to be the proximate cause of the injury. (Southern Ry. Co. v. Crawford, 164 Ala. 178, 51 So. 340; St. Louis & S. F. R. Co. v. Dorman, 205 Ala. 609, 89 So. 70; Carlock v. Denver & R. G. R. Co., 55 Colo. 146, 133 P. 1103; Miner v. McNamara, 81 Conn. 690, 72 A. 138, 21 L. R. A., N. S., 477; Jackson v. Old Dominion Min. Co., 151 Mo.App. 640, 132 S.W. 306.)

A verdict based upon surmise and speculation will not stand. (Antler v. Cox, 27 Idaho 517, 149 P. 731; Webber v. Bank of Tracy, 66 Cal.App. 29, 225 P. 41; Brown v. Union P. R. Co., 81 Kan. 701, 106 P. 1001, 29 L. R. A., N. S., 808; Beeler v. Atchison, T. & S. F. Ry. Co., supra; Louisville & N. R. Co. v. Cook, 183 Ky. 773, 210 S.W. 661; Sandanger v. Carlisle Packing Co., 112 Wash. 480, 192 P. 1005.)

A contract of carriage, exempting the carrier from liability for damages caused by the inherent weaknesses, viciousness and propensities of the animals, is valid. (Chaimson v. American Ry. Express Co., 178 Wis. 286, 189 N.W. 529; Lane v. Oregon Short Line R. Co., supra; Crabill v. Oregon Short Line R. Co., supra; 10 C. J. 121, 123; 4 Elliott on Railroads, sec. 3321, p. 827.)

Where the gravamen of the action is negligence and there is no proof of negligence, it is mandatory upon the court to direct a verdict for the defendant. (Lane v. Oregon Short Line R. Co., supra; Crabill v. Oregon Short Line R. Co., supra; Beeler v. Atchison, T. & S. F. Ry. Co., supra.)

"The burden is upon him who alleges negligence to prove it by substantial evidence (Reino v. Montana Mineral Land Dev. Co., 38 Mont. 291, 99 P. 853; Byrnes v. Butte Brewing Co., 44 Mont. 328, Ann. Cas. 1913B, 440, 119 P. 788), and this burden is not sustained if the evidence furnishes the basis for two equally permissible conclusions as to what caused the injury, one of which speaks negligence on the part of the defendant, while the other is wholly inconsistent with it, and points to some other efficient proximate cause." (Scheytt v. Gallatin Valley Milling Co., 54 Mont. 565, 172 P. 321.)

W. W. Mattinson, for Respondent.

Negligence may be established by evidence wholly circumstantial. (Calkins v. Blackwell Lumber Co., 23 Idaho 128, 143, 129 P. 435; Botts v. St. Louis etc. R. Co., 191 Mo.App. 676, 177 S.W. 746; Mosteller v. Iowa Central R. Co., 153 Iowa 390, 133 N.W. 748; Snyder v. King, 199 Mich. 345, 1 A. L. R. 893, 165 N.W. 840; Blackburn v. Adams Express Co., 230 Pa. 635, 79 A. 760; 20 R. C. L. 180.)

The character and extent of the injuries to the livestock are facts and circumstances from which inference of negligent operation of train may be made. (Robinson v. Bush, 199 Mo.App. 184, 200 S.W. 757; Crow v. Bush (Mo. App.), 200 S.W. 762.)

The evidence in this case justified a finding of negligence on the part of the carrier. (Bartelt v. Oregon R. & Nav. Co., 57 Wash. 16, 135 Am. St. 959, 106 P. 487; Schaeffer v. Philadelphia & Reading R. R. Co., 168 Pa. 209, 47 Am. St. 884, 31 A. 1088; Blackburn v. Adams Express Co., supra; Snyder v. King, supra; Mosteller v. Iowa Cent. R. Co., supra.)

If the facts are such that more than one reasonable conclusion or inference can be drawn from the circumstantial facts in evidence--one that negligence has been shown, and the other that negligence has not been shown--and the jury decide and determine that negligence has been shown, the action of the jury should not be disturbed. (Calkins v. Blackwell Lumber Co., supra; Fleenor v. Oregon Short Line R. R. Co., 16 Idaho 781, 803, 102 P. 897; Katz v. T. I. Butler Co., 81 Cal.App. 747, 254 P. 679; Snyder v. King; supra; 20 R. C. L. 169-171.)

ADAIR, Commissioner. Babcock, Featherstone, CC., Wm. E. Lee, C. J., Taylor, J., and Brinck, D. J., concur. Budge and Givens, JJ., dissent. T. Bailey Lee, J., disqualified.

OPINION

ADAIR, Commissioner. --

This is an action sounding in tort to recover damages from appellant a common carrier, for injuries sustained by horses included in a carload shipment. The dereliction charged is that the carrier so negligently operated its freight train that one horse was killed and seven others were injured while being transported over appella...

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