Crabill v. Oregon Short Line Rilroad Co.

• Decision Date: 30 July 1921
• Parties: G. M. CRABILL, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

200 P. 121

34 Idaho 251

G. M. CRABILL, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

July 30, 1921

COMMON CARRIER-LIVESTOCK-NEGLIGENCE-SHIPPER-CONTRACT TO FEED AND WATER-MOTION TO INSTRUCT VERDICT.

1. In an action by a shipper against a carrier for damages for the loss of livestock unloaded for feed and water the carrier has a right to show as a part of its defense a contract with the shipper providing that, "The shipper will, at his own risk and expense, load, unload, care for, feed and water the stock until delivery of same to consignee at destination, and will furnish to go with the stock for that purpose, one or more attendants."

2. A motion to instruct the jury to return a verdict for defendant ought to be granted when, at the close of all the evidence the plaintiff has shown nothing that tends to establish the facts that constitute his cause of action.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. H. F. Ensign, Judge.

Action for damages for loss of livestock. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment reversed and action dismissed. Costs awarded to appellant.

Geo. H Smith and H. B. Thompson, for Appellant.

An answer setting up that in consideration of a reduced freight rate the shipper and carrier entered into an agreement that the shipper should assume the duty to load, unload, reload feed, water, tend and care for sheep at his own risk during the entire transportation states a lawful defense and is not subject to demurrer. (Webster v. Union P. R. Co., 200 F. 597.)

Where the shipper assumes the responsibility for stock while off cars, he alone is responsible for failure to reasonably and properly protect the same. (Michie on Carriers, secs. 1755, 1756; Heller v. Chicago & G. T. Ry. Co., 109 Mich. 53, 63 Am. St. 541, 66 N.W. 667; 4 R. C. L. 731; St. Louis, I. M. & S. R. R. Co. v. Hudgins Produce Co., 118 Ark. 398, 177 S.W. 400; Nunnelee v. St. Louis, I. M. & S. R. R. Co., 145 Mo.App. 17, 129 S.W. 762; Currie v. Seaboard Air Line R. Co., 156 N.C. 432, 72 S.E. 493.)

Paul S. Haddock and E. D. Reynolds, for Respondent, filed no brief.

DUNN, J. Rice, C. J., and Budge, Lee and McCarthy, JJ., concur.

OPINION

DUNN, J.

This action was brought by respondent to recover damages claimed to have resulted from the negligence of appellant in leaving open the gates of its feed lots in Shoshone, Idaho, and permitting sheep belonging to the respondent to escape from said lots and be lost. Appellant denied the acts of negligence charged by the respondent and by way of defense set up a contract between appellant and respondent containing this provision: "The shipper will, at his own risk and expense, load, unload, care for, feed and water the stock until delivery of same to consignee at destination, and will furnish to go with the stock for that purpose, one...