Grigg v. Southern Pacific Company

• Decision Date: 25 October 1957
• Docket Number: No. 15220.,15220.
• Citation: 246 F.2d 613
• Parties: Glen Earl GRIGG, Appellant, v. SOUTHERN PACIFIC COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

246 F.2d 613 (1957)

Glen Earl GRIGG, Appellant, v. SOUTHERN PACIFIC COMPANY, a Corporation, Appellee.

No. 15220.

United States Court of Appeals Ninth Circuit.

June 28, 1957.

Rehearing Denied October 25, 1957.

Barnett & Robertson, Rodney H. Robertson, San Francisco, Cal., Charles J. Miller, Sacramento, Cal., for appellant.

Devlin, Diepenbrock & Wulff, Horace B. Wulff, Sacramento, Cal., for appellee.

Before LEMMON, FEE and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Some of H. L. Coon's mules were loose on a freeway, U. S. Highway No. 40, in the westerly suburban area of Sacramento on December 17, 1954. Shortly after six in the evening, it was already dark, Glen Earl Grigg, alone and eastbound in his new Cadillac, collided with two of the mules. At least one mule was killed,¹ the Cadillac was badly damaged, and Grigg suffered some injuries. Although Grigg was driving about 50-55 miles per hour when he first saw the mules a very short distance in front of him, it has been determined that he was free from negligence both in his speed and in his conduct in the emergency.

The mules on the freeway were part of a shipment of 57 mules and horses which had arrived on December 16 in two stock cars via Southern Pacific freight at the railroad's Washington corrals in West Sacramento.² There Coon,³ the consignee, had unloaded the livestock from the cars into the wooden fenced corrals of Southern Pacific under the supervision (or at least checking) of one Anthony Perine, a company clerk. The latter regularly attended unloadings at the pens and made the customary count of animals and check of their physical condition for injuries.

This particular shipment of horses and mules had originated at Texarkana, Texas, on the Texas and Pacific Railway on December 9. The shipment was made under a uniform livestock contract between the originating carrier and one Haas Owen, shipper, at Texarkana. In the contract (and in the freight waybills for the two cars as originally prepared) Sacramento was given as the destination. The animals traveling under a low tariff, were destined for slaughtering in California for poultry feed. Thus, the animals in transit had the unlovely title of "chicken" horses and mules.

The shipment was not accompanied by a drover. The cars passed on to the lines of the Santa Fe railroad at Sweetwater, Texas. Santa Fe carried them to Bakersfield, California, where Southern Pacific picked them up and moved them to Sacramento. At intermediate points all three railroads had removed the animals at pens where presumably they were watered and fed. These were rest stops.

Until the afternoon of December 18, the horse and mule shipment had no other destination than Sacramento. On December 16 and 17 the shipment as originally ordered was complete. But the applicable tariffs filed with the Interstate Commerce Commission provided that within 20 days after arrival at the first destination the livestock could be reshipped to a second destination. At Sacramento, on December 18, Coon filed with Southern Pacific a diversion or reshipment order to Santa Rosa, California.⁴ The two cars were promptly reloaded with the 55 animals remaining and then the cars went out of Sacramento and eventually over the lines of the Northwestern Pacific to Santa Rosa. The cars arrived at their final destination on December 19. Three days later, on December 22, a certificate was filed that all of the remaining animals had been slaughtered.

We must now return to the Washington corral at Sacramento. There is no doubt that when the mules arrived on December 16 Coon immediately "took charge." Perine for the railroad was there at the unloading. His entry in the railroad stock book for this occasion says, "Unloaded by owner, counted by me, not called by 12th Street (meaning the yard office), happened (while off duty) to see stock pass (in the cars on the way to the corrals.)" About 10:00 a. m. the next morning Perine again went to the corrals. At that time Coon had the animals outside of the regular wooden corrals but within a contiguous area which for a portion of its perimeter had a rather flimsy wire fence. Here the animals were being fed. In this feeding that morning, Coon had been assisted by another stock buyer named Courtney. Perhaps, the reason for this feeding outside was that the regular corral was quite muddy. Who originally put the wire fence up no one knows. This wire pen had been in place long enough for Southern Pacific to know about it. All or part of it had been erected by Coon some months before. Although troughs up off of the ground were available inside the regular pens, there may have been a problem of getting the feed through the mud to the troughs.

Perine was back again past the stockyards about 3:45 p. m. on his way to commence his evening 4:00 p. m. to midnight shift. At that time it would appear the animals were all in the outside wire pen, or at least most of them. Coon was there watching.

Next in point of time, at just about 5:30 p. m., we find California Highway Patrolman George Houck running around the freeway area looking for mules near the place where the collision happened 40-45 minutes later. He testified that he found a deputy sheriff had some mules "corraled" near the freeway and that he saw some mules loose on the freeway. After the accident, too, Houck was "chasing mules." (Houck suggests that the accident may or may not have been caused by the mules that the deputy sheriff had corralled.)

Apparently sometime after the accident Coon appeared in the area and was busy "rounding up" animals.⁵ Late in the evening (after 9:00 p. m.) Perine was in the area looking for loose animals. He found none. The next morning, assisted by another Southern Pacific employee, R. L. Duke, Perine did find three more horses or mules which he took or drove to the corral. The next morning Coon was at the corral and all horses and mules were inside the wooden corral after Duke and Perine brought in the three loose animals.

On May 27, 1955, Grigg filed in the Superior Court of the State of California, in and for the County of Sacramento, a complaint for damages. He named as defendants Coon, the Southern Pacific Company and "First to Sixth Doe, Inclusive." The burden of the negligence charge was:

"That on or about the said 17th day of December, 1954, at about the hour of 6:15 o\'clock p. m., the said defendants, and each of them, owned, possessed and controlled, and had in their sole care and custody certain mules or horses in the immediate vicinity of said Park Overpass, U. S. Highway 40, approximately one mile west of Sacramento, California, and were so negligent, careless and reckless in their said care, custody and control, ownership and maintenance of said horses and mules as to allow said animals to stray or come upon the said Park Overpass on U. S. Highway 40 and into and upon the main traveled portion of said highway, and into the path of the plaintiff\'s oncoming car, and that at said time and place, the car of plaintiff was caused to be struck by one or more of said horses or mules with great force and violence, severely damaging the automobiles of plaintiff and causing plaintiff to sustain the personal injuries hereinafter set forth." (Emphasis supplied.)

Plaintiff sought to recover for his property damage, medical expense and his own personal injuries. He had had little obvious injuries at the outset, but he claimed that there were serious resulting injuries evident later, particularly to his teeth and hip. He was damaged in his property and his person by the collision. How much he was damaged is not a problem here.

Coon was never served, he having already left for Arkansas. The record would indicate he has not been heard of since. No one ever had the benefit of his testimony.

Before the appointed date for trial in the state court there had been certain discovery procedures participated in by both parties. On the day of the trial, Coon and the Does not yet being before the court, Southern Pacific moved swiftly with a petition in the United States District Court for the Northern District of California for removal of the cause. That removal plaintiff has fought unsuccessfully and we must consider it later herein. Then more details will be stated.

In the district court the pleadings were never amended except as to the allegation of damage. No pre-trial conference was ever held. The mat on which the parties mainly fought to establish or deny liability was a quilt formed by the shipping documents and excerpts from statutes which they considered applicable.

The case was judge tried. After the evidence of plaintiff was completed the defendant moved for judgment. Eventually this was granted. The district court was of the opinion that the control and possession of the animals was in Coon on December 17, the day of the collision and not in Southern Pacific. In its findings the court said:

"That upon their arrival at the siding adjacent to the wooden corral of the defendant, Southern Pacific Company, at West Sacramento, California, said H. L. Coon, as the owner of said horses and mules and the consignee of said shipment, unloaded said horses and mules from said cars into said corral, watered them, fed them and took the exclusive custody and possession thereof; that from and after the arrival of said two (2) cars of horses and mules in West Sacramento, State of California, at or about the hour of 10:30 o\'clock a. m. on the 16th day of December, 1954, (at which latter date the said H. L. Coon executed an order of diversion pursuant to which said shipment was reloaded and carried to Santa Rosa, California, the defendant, Southern Pacific Company had no possession and/or control of said horses or mules but, to the contrary, the sole and exclusive care, custody, control, ownership and maintenance of said horses and/or mules was with said consignee and owner, to wit, H. L. Coon.

"That on the 17th day of December, 1954, at

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