Egan v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 30 December 1922
• Docket Number: 22176
• Citation: 191 N.W. 708,109 Neb. 567
• Parties: DAN EGAN, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

191 N.W. 708

109 Neb. 567

DAN EGAN, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL., APPELLANTS

No. 22176

Supreme Court of Nebraska

December 30, 1922

APPEAL from the district court for Grant county: BAYARD H. PAINE JUDGE. Reversed.

REVERSED AND REMANDED.

Byron Clark, Jesse L. Root and J. W. Weingarten, for appellants.

Daniel F. Osgood, contra.

Heard before MORRISSEY, C. J., DAY, FLANSBURG and ROSE, JJ SHEPHERD, District Judge.

OPINION

SHEPHERD, District Judge.

A car of stock was shipped by the plaintiff from Hyannis to South Omaha on or about the 2d day of November, 1919, the shipper sending a caretaker along to look after the said stock. The caretaker last saw the cattle at or near Seward, Nebraska, when they were standing up and apparently in good condition. When the shipment was unloaded at Omaha, two of the cows were found to be cripples and had to be removed from the car and disposed of as such, to the plaintiff's damage in the sum of $ 106.70. The action is upon the assumption that the railroad company must be presumed liable for all injuries to stock in transportation, except those arising from the act of God, or the public enemy, or from the natural propensities of the animals. The answer of the company was that a caretaker was in charge, and that, such being the case, said presumption does not obtain, and that unless the injuries relied upon are proved to have resulted from the negligence of the company the owner cannot recover. The contention of the plaintiff in reply was that the act of 1915, requiring railroad companies to transport caretakers with shipments of stock upon the consideration charged for such shipments, disposes of the defense so pleaded by said company.

The determining question seems to be whether or not the enactment of the legislature, Laws 1915, ch. 106, sec. 1, is of such force as to change the rule relieving the company of the burden of the described presumption in those cases where the shipper sends a caretaker with the stock. And the argument of the plaintiff seems to be that, before the said enactment was passed, the carrying of a caretaker by the company was a sufficient consideration from company to shipper to make valid an agreement between the parties that, by sending his caretaker along without extra expense to him to care for his stock, the shipper released the company from the burden of such presumption, and took upon himself the burden of proving that any injury happening to the stock in transit was chargeable to the negligence of the company.

We cannot see how the statute has any such effect, and the previous decisions of this court relieving the company from any such presumption where a caretaker was in charge have been upon an entirely different theory. This theory is well set out in Starr v. Chicago, B. & Q. R. Co., 103 Neb. 645, 173 N.W. 682:

"The common-law rule, making the carrier an insurer of goods in its hands for transportation, arose from the practical impossibility of shippers proving how the goods were lost. Frauds and collusions were easily practiced but hard to prove. The shipper parted entirely with his possession and control, and the carrier could pretend a robbery or accident which had not happened. In course of time the original rule was modified in certain particulars. Not only were losses occasioned by the act of God or public enemy excepted, but...