Davis v. Graham

Decision Date29 April 1924
Docket Number1096
Citation225 P. 789,31 Wyo. 239
PartiesDAVIS v. GRAHAM
CourtWyoming Supreme Court

ERROR to District Court, Fremont County; CYRUS O. BROWN, Judge.

Action by James M. Graham against James C. Davis, Agent of the United States Railroad Administration to recover damages, for delay and shrinkage in shipment of livestock. There was judgment for plaintiff and defendant brings error.

Judgment affirmed.

P. B Coolidge and Wymer Dressler for plaintiff in error.

Shipment accompanied by caretaker places burden of proof upon plaintiff as to negligence of carrier in handling the shipment, Starr v. Ry. Co., 163 N.W. 682; Cleve v. Ry. Co., 77 Neb. 168; Ry. Co. v. Williams, 61 Neb. 608; Ry. Co. v. Schuldt, 66 Neb. 43; an action based on negligence relieves carrier as insurer Colsch v. Ry. Co., 127 N.W. 198; the rule has special application where owner contracts to unload and feed the stock, Hanley v. Ry. Co., 134 N.W. 417; Ward v. Ry. Co., 137 N.W. 995; Ry. Co. v. Ward, 147 S.W. 949; McCampbell v. Ry. Co., 150 S.W. 987; Bowers v. Ry. Co., 135 N.W. 1017; nothing in the 28 hour law prevents owner from furnishing feed for stock shipment, Webster v. Ry., 200 F. 597; carrier has a right to rely upon caretaker for notice of needs of shipment Jefferies v. Ry. Co. , 88 Neb. 268; Fluckinger v. Ry. Co., 154 N.W. 865; the shipment was handled in the usual and ordinary time, defendant's schedules are presumed to be reasonable, Payne v. Ry. Co., 99 Neb. 699; extraordinary means of shipment are not required, Tiller & Smith v. Ry. Co., 142 Ia. 309; Janesville Co. v. Hines, 178 N.W. 739; Burnes v. Ry. Co., 104 Wis. 646; there was no evidence of damage resulting from delay in furnishing cars for shipment; furnishing of cars is transportation, Ry. Co. v. Elev. Co., 226 U.S. 426; Ry. Co. v. Prescott, 240 U.S. 632; a promise of special service is void, Ry. Co. v. Kirby, 225 U.S. 155; Ry. Co. v. Milling Co., 241 U.S. 190; an agent has no lawful right to make a specific agreement for cars at a certain time, Underwood v. Director General, 222 S.W. 1037; Bradford v. Director General, 227 S.W. 889; there was no competent evidence as to weight of shipment at loading point, U. P. Ry. Co. v. Perrine, 267 F. 657; instruction number 2 was erroneous; the verdict is contrary to instructions numbered 4, 7 and 8; the court erred in refusing requested instruction 11; and in refusing to instruct on measure of damages, 14 R. C. L. 727; the court erred in refusing a new trial.

John Dillon and G. J. Christie for defendant in error.

It was unnecessary for plaintiff to prove negligence, 10 C. J. 122; 4 R. C. L. 949; defendant was an insurer, Ry. Co. v. Blyth, 19 Wyo. 419; 10 C. J. 376; there was no evidence of a special agreement by owner to care for shipment, 10 C. J. 381; proof of delivery to carrier makes prima facia case, 4 R. C. L. 993; allegations of negligence were superfluous, 10 C. J. 360; defendant failed to comply with the Federal Statutes, 4386 U. S. R. S.; the shipment was interstate; the fact that owner accompanied shipment on same train does not relieve carrier from duty to feed and care for shipment in absence of special agreement, 10 C. J. 95-98; 4 R. C. L. 979-983; defendant failed in the degree of care required by the circumstances, 29 Cyc. 415; negligence is question for the jury, 20 R. C. L. 166; failure to observe Federal statute is sufficient to go to the jury, Ry. Co. v. Simpson Bros. 23 Wyo. 320; justifiable delay must be shown by carrier, 10 C. J. 300; Ry. Co. v. Simpson supra; carrier may decline shipment because of congestion, but having accepted it with knowledge of conditions cannot excuse delay on ground of press of business, 10 C. J. 290; Davirst v. Ry. Co., 34 L. R. A. (NS) 637; plaintiff's testimony as to weight was not incompetent; 10 R. C. L. 955; Carland v. Tel. Co., 43 L. R. A. 280; U. P. Ry. Co. v. Perrine, 267 F. 657; instruction number 2 was not erroneous, Ry. Co. v. Simpson Bros, supra; the verdict is not contrary to instruction 8; refusal to direct verdict was not error; requested instruction 11 was covered by instruction 8, given by the Court, Edwards v. Murray, 5 Wyo. 153; a demand based on market value, subject to easy proof, though unliquidated is subject to interest claims, Kuhn v. McKay, 7 Wyo. 65; 10 C. J. 400; questions as to admission of evidence are not properly before the court for review Ry. Co. v. Morrison, 16 Wyo. 309; Imp. Co. v. Bradley, 7 Wyo. 228.

P. B. Coolidge and Wymer Dressler in reply.

Time consumed in transportation in excess of schedules, is a mere presumption of negligence that may be overcome by proof, N. S. F. Co. v. Ry. Co., 179 N.W. 503; defendant's explanations justifying delay remain unchallenged, the verdict is apparently based on sentiment to help stockmen; there is no basis in law for holding a carrier liable for delay unless due to carrier's negligence.

BLUME, Justice. POTTER, Ch. J., and District Judge WM. A. RINER, the latter sitting in place of Kimball, J., concur.

OPINION

BLUME, Justice.

This is an action by James Graham, plaintiff below and defendant in error here, against the Agent of the United States Railroad Administration, on account of damages sustained for delay of a shipment of 18 cars of cattle shipped from Riverton, Wyoming, to South Omaha, Nebraska, on the Chicago & Northwestern Railroad. The sum of $ 906.30 and interest is claimed on account of the difference in the market value of the cattle on October 14, 1919 and on October 13, 1919, the time when, it is claimed, the cattle should have arrived. A further sum of $ 1224.75 and interest is claimed on account of excess shrinkage of the cattle arising from the delay and from the fact that the cattle were kept forty-six hours in the cars without feed or water in violation of the laws of the United States. The jury allowed the plaintiff's claim in full, with interest, and defendant brings proceedings in error.

Plaintiff testified that the normal running time for taking cattle from Riverton to Omaha would be sixty hours; that his cattle left Riverton on Friday afternoon at 1.30 p. m. October 10, 1919, and should have arrived at Omaha at 1.30 Monday morning, October 13, 1919. Mr. Dickson, the foreman of the yards of defendant at Long Pine, testified that the regular and ordinary stopping place for feeding and watering cattle which came from Riverton was Long Pine, Nebraska. The other evidence of the defendant shows that, according to the railroad schedule then in force, the straight running time from Lander to Omaha was fifty-five hours and ten minutes, which would be about fifty-four hours from Riverton to Omaha. Stops of one hour each are, in the schedule, allowed at Casper, Chadron, Norfolk and Fremont. If cattle are fed and watered at Long Pine, an additional time, from 5 a. m. to noon is given, making a further period of seven hours. This makes a total time of sixty-five hours from Riverton to Omaha, and if the cattle in question had been carried according to this schedule, the cattle would have arrived at South Omaha approximately at 6.30 a. m. on Monday, October 13, 1919, presumably amply early for the market on that day. The cattle actually arrived about 10 o'clock on Monday night and were sold on the market the following day. Most of the delay occurred at Long Pine, Nebraska. The cattle arrived at that place at 4.30 on Sunday morning, were not unloaded until 11.30 a. m., when they had been in the cars for forty-six hours without feed or water, and left Long Pine at 11 p. m. of that day.

A number of errors are assigned, among which is one that the verdict is not sustained by the evidence. This assignment of error, however, is closely interwoven with and dependent on the law applicable thereto, which is in dispute and which we shall consider in connection therewith. Other assignments of error, such that the court erred in not instructing the jury to return a verdict in favor of defendant, and that the verdict is contrary to certain instructions, is embraced in the foregoing and need not be considered separately. We shall turn our first attention directly to the subject of the confinement of the cattle in the cars for forty-six hours without feed or water, although the subject of delay in transportation in general, closely related to and partially embracing the former subject, will necessarily be touched upon in connection therewith.

1. The Federal Statute (37 Stat. at L. 607c. 3594 U.S. Comp. St. Supp. 1907, pp. 918, 919, Supp. 1909 pp. 1178, 1179) provides that no railroad company shall confine any cattle, sheep or swine for a period longer than twenty-eight consecutive hours, without unloading the same for rest, water and feeding for a period of at least five consecutive hours, unless prevented by storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight; provided that upon the written request of the owner or custodian thereof, the time for confinement may be extended to thirty-six hours. Sec. 2 of the act provides that animals so unloaded shall be properly fed and watered during such rest either by the owner or custodian, or, in case of his default in so doing, by the carrier. These provisions were violated, and it is the contention of counsel for defendant, as we understand it, that the latter is not responsible for any damages resulting therefrom for three different reasons; first, because plaintiff accompanied the stock and is himself responsible for the violation of the statute; second, that plaintiff must show negligence aside from showing the violation of the statute; and, third, that plaintiff has shown an ample excuse. We shall consider these points in their order.

(a) The cattle arrived at Chadron at 4.50 p. m., ...

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7 cases
  • State v. Parker
    • United States
    • Wyoming Supreme Court
    • August 9, 1932
    ...now said that there was no competent evidence of the value of the gasoline drawn from the pipe line by the defendant. In Davis v. Graham, 31 Wyo. 239, 225 P. 789, 795, court, speaking of a witness undertaking to prove the value of cattle on a certain date, said: "We do not think that it was......
  • Shikany v. Salt Creek Transp. Co.
    • United States
    • Wyoming Supreme Court
    • May 8, 1935
    ...to direct a verdict. There was no proof of value of the claimed oriental rug. Hatch Brothers Company v. Black, (Wyo.) 165 P. 518; Davis v. Graham, 31 Wyo. 239. The rug was marketable property and had no market value. The court erred in submitting to the jury the question of marketable value......
  • Reynolds v. Tice
    • United States
    • Wyoming Supreme Court
    • May 21, 1979
    ...such instructions need not be given in those circumstances in which the measure is obvious, simple and easily apparent. Davis v. Graham, 31 Wyo. 239, 225 P. 789 (1924). The circumstances of each case must be considered in the determination as to whether or not a measure of damage instructio......
  • Cooley v. Frank
    • United States
    • Wyoming Supreme Court
    • September 11, 1951
    ...let alone the correct weights of the two stacks of hay which were baled. This testimony was pure hearsay. As we said in Davis v. Graham, 31 Wyo. 239, 256, 225 P. 789, 795 to permit the weights to be established in such a manner would 'undoubtedly, ultimately lead to the grossest of frauds.'......
  • Request a trial to view additional results

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