Fuller v. Chi. & N. W. Ry. Co.
| Decision Date | 02 October 1915 |
| Docket Number | No. 18184.,18184. |
| Court | Nebraska Supreme Court |
| Parties | FULLER v. CHICAGO & N. W. RY. CO. |
Where a joint action was brought against an initial and a connecting carrier for injuries to animals transported over both roads, and a judgment was rendered exonerating the connecting carrier, from which judgment no appeal was taken, it was erroneous to instruct the jury on appeal to the district court by the initial carrier from the judgment against it that they might consider and assess damages for injuries occurring on the line of the connecting carrier.
Appeal from District Court, Hall County; Hanna, Judge.
Action by Perry L. Fuller against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.A. A. McLaughlin and Wymer Dressler, both of Omaha, for appellant.
W. A. Prince, of Grand Island, for appellee.
Plaintiff delivered 54 head of horses and mules at Ewing, Neb., to the defendant to be transported to Grand Island, Neb. Plaintiff charges that while the horses were being loaded the loading chute broke and several of the horses were injured. The animals were loaded in two cars, one of which cars is charged to have been defective, which were taken to Norfolk by the defendant, and from there were transported to Grand Island by the Union Pacific Railroad Company. When the horses arrived at Grand Island several of them were found to be injured, as plaintiff claims, to his damage in the sum of $145, for which amount verdict and judgment were rendered against the defendant. Defendant appeals.
It appears that the action was originally commenced in the county court of Hall county against the Chicago & Northwestern Railway Company and the Union Pacific Railroad Company as joint defendants. The trial there resulted in a verdict in favor of plaintiff against the Chicago & Northwestern Railway Company and against the plaintiff in favor of the Union Pacific Railroad Company. The Chicago & Northwestern Railway Company alone appealed. The plaintiff filed his petition in the district court against the company alone. In its answer defendant admitted that it received the horses, denied that the loading chute or either of the cars were out of repair, and alleged that the plaintiffs entered into a written contract whereby it was agreed that the defendant should not be liable for any injuries in carrying the animals except upon its own line, and that it safely conveyed the horses to Norfolk and delivered the animals to the Union Pacific Railroad Company in good condition according to contract. It was further alleged that on account of the judgment mentioned plaintiff is estopped to claim any liability against this defendant for any damage or injury occurring while in the hands of the Union Pacific Railroad Company.
Plaintiff insists that the contract was one for a through shipment from Ewing to Grand Island, while the defendant takes the position that by the contract defendant only undertook to transport the animals safely to Norfolk, and there deliver them to the connecting carrier to be transported to Grand Island.
Defendant insists that under the holding in Fremont, E. & M. V. R. Co. v. Waters, 50 Neb. 592, 70 N. W. 225,Fremont, E. & M. V. R. Co. v. New York, C. & St. L. R. Co., 66 Neb. 159, 92 N. W. 131, 59 L. R. A. 939, and ...
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