Hale v. Mo. Pac. Ry. Co.

• Decision Date: 15 February 1893
• Citation: 54 N.W. 517,36 Neb. 266
• Parties: HALE v. MISSOURI PAC. RY. CO.
• Court: Nebraska Supreme Court

36 Neb. 266

54 N.W. 517

HALE

v.MISSOURI PAC. RY. CO.

Supreme Court of Nebraska.

Feb. 15, 1893.

Syllabus by the Court.

1. Section 4386, Rev. St. U. S., imposes a penalty upon a railway company which transports live stock if the animals are kept in the cars more than 28 consecutive hours, “unless prevented from so unloading by storm or other accidental causes.” There is further exception where animals “have proper food, water, space, and opportunity to rest” on the cars. Held that, in addition to the penalty imposed by statute, a railway company which failed to comply with the above requirement would be liable in damages to the owner of the stock, but to state a cause of action the petition must show that the case is not within the exceptions named.

2. In an action for the loss of three horses lost by negligence, and three which died from the same cause, the value of all being placed at $355, and for damages to two car loads, the jury returned a verdict for $335.84. Held, that it was apparent that the damages were awarded upon both causes of action set forth in the petition, and neither the pleadings nor proof justified a verdict for general damages.

Error to district court, Cass county; Field, Judge.

Action by J. T. Hale against the Missouri Pacific Railway Company to recover for the loss of six horses and for injuries to other horses of plaintiff. There was judgment for plaintiff, and defendant brings error. Affirmed.Brome, Andrews & Sheean and Byron Clark, for plaintiff in error.

J. W. Orr and A. N. Sullivan, for defendant in error.

MAXWELL, C. J.

This action was brought by the plaintiff against the defendant in the district court of Cass county to recover for the loss of six horses, and damages for injuries to two car loads, shipped from San Antonio, Tex., to Norfolk, Neb. On the trial of the cause the jury returned a verdict in favor of the plaintiff for the sum of $335.84, upon which judgment was rendered. A large number of questions are discussed in the brief of the plaintiff which do not seem to arise in the case, and need not be noticed. There are two counts in the petition. In the first it is alleged that in May, 1886, the plaintiff shipped 181 horses from San Antonio, Tex., to Omaha, and that three of said horses, of the value of $175, escaped through the defendant's negligence, and were lost. The second cause of action is as follows: “(1) The plaintiff complains of the defendant for that the defendant now is, and at all times hereinafter mentioned has been, a corporation organized and existing under and by virtue of the laws of the state of Missouri, and operating lines of railway into and through the states of Missouri, Texas, and Nebraska, and into and through the county of Cass, in the said state of Nebraska. (2) At all the times and dates hereinafter mentioned defendant was a common carrier engaged in the business of transporting goods, wares, merchandise, and live stock for hire for the public generally to and from points on the line of its said railway and on lines connected therewith, with an office at San Antonio, Texas, and was operating its lines of railway between said town of said San Antonio, Texas, and various points in said state of Nebraska. (3) On the 19th day of December, 1886, plaintiff was engaged in buying horses in the state of Texas, with headquarters at San Antonio, in said state, for shipment to and sale at points in said state of Nebraska. (4) On the date aforesaid the defendant, for a good and valuable consideration, did undertake to and contract with the plaintiff for the transportation by said defendant for plaintiff of two car loads of mares belonging to said plaintiff from said San Antonio, Texas, to Norfolk, Nebraska, and in that behalf to protect and care for said mares, and deliver them in good and safe condition, within a reasonable and proper time, at the point last above named. (5) Under and in pursuance of said contract, which was in writing, on the date aforesaid plaintiff delivered to said defendant at said San Antonio, Texas,...