Frank L. Smith Meat Co. v. Oregon R. & Nav. Co.

• Decision Date: 27 June 1911
• Parties: FRANK L. SMITH MEAT CO. v. OREGON R. & NAVIGATION CO.
• Court: Oregon Supreme Court

117 P. 303

59 Or. 206

FRANK L. SMITH MEAT CO. v. OREGON R. & NAVIGATION CO.

Supreme Court of Oregon

June 27, 1911

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by Frank L. Smith Meat Company against the Oregon Railroad &amp Navigation Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Plaintiff corporation is engaged in the butchering business in Portland, Or. The complaint alleges, in substance, that about March 14, 1908, plaintiff caused to be shipped to it, over defendant's railroad, from North Powder in Eastern Oregon, 53 head of live stock, intended for slaughter at Portland; that, owing to the negligent operation of defendant's train, the same arrived at Huron, Or several hours later than it should have done; that a washout occurred at the latter point preventing the train from proceeding further; that, if the train had not been so negligently operated, it would have arrived at Huron and passed the place where the washout occurred without delay or detention on the route between North Powder and Portland that the train and cars containing the cattle were returned by defendant to La Grande about 10 o'clock a.m. on March 15, 1908, when, without notice to or consent of plaintiff or the person in charge of the stock, they were unloaded into a yard entirely without shelter and covered with mud several inches deep, and kept there for three days without sufficient food and without any shelter or resting place; that the yard was an unfit and unsuitable place in which to keep the cattle, as defendant well knew; that defendant neglected and refused to provide any place other than the yard in which to keep them and refused to allow plaintiff or the person in charge to provide any other place for them; that because of the alleged wrongful acts of defendant the cattle became greatly reduced in weight and depreciated in market value, to plaintiff's damage in the sum of $522.12; and that plaintiff was obliged to pay $30.20 for extra feed for the cattle.

Defendant answered, admitting that the cattle were shipped to plaintiff on the date named, denying that plaintiff was the shipper but alleging that the shipment received by them for plaintiff was the same shipment mentioned in the complaint. It denied all plaintiff's allegations of negligence, and admitted that the cattle were returned to La Grande about 9 o'clock a.m. of March 15th. For a further and separate answer, defendant alleged that on March 14, 1908, a copartnership firm, doing business as Davis Bros., of which C.E. Davis was one of the members, entered into a contract in writing with defendant for the transportation of two car loads of cattle from North Powder to Portland by defendant that the shipment of cattle, the exact number of which was unknown to defendant, was the same one mentioned in the complaint; that, in consideration of a rate of transportation granted by the defendant to the shipper, governing such shipment, the shipper and this defendant entered into a stipulation with respect to the conditions under which the shipment should be and was transported by this defendant. One provision of this contract is as follows: "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. Any carrier liable on account of loss or damage to any of said stock, shall have the benefit of any insurance that may have been effected thereupon. The rules, regulations and conditions prescribed by the carriers for the transportation of live stock, as evidenced by their published tariffs,...