Hanley v. Chicago, Milwaukee & St. Paul Railway Co.

• Citation: 134 N.W. 417,154 Iowa 60
• Parties: A. J. HANLEY, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO. ET AL., Appellants
• Decision Date: 10 February 1912
• Court: United States State Supreme Court of Iowa

134 N.W. 417

154 Iowa 60

A. J. HANLEY, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO. ET AL., Appellants

Supreme Court of Iowa, Des Moines

February 10, 1912

Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge.

THIS is an action for damages for negligent delay in the shipment of a carload of horses, and for a failure to feed and water the same during transportation. There was a verdict and judgment for the plaintiff for $ 275. The defendant appeals.

Reversed.

J. C Cook and C. S. Ranck, for appellant.

Remley & Calkins, for appellee.

OPINION

EVANS, J.

The shipment in question was made from Miles City, Mont., to Cedar Rapids, Iowa, over the line of appellant's railroad. The majority of the horses in question consisted of weanling colts. The others consisted of yearlings and two year olds and one or two older horses. They were shipped from Miles City on Monday morning, September 21, 1908. They arrived at Cedar Rapids on Sunday night, September 27th, and were delivered to a connecting carrier for transportation to Iowa City on Monday morning. This connecting carrier was made a joint defendant in the trial court, but the verdict of the jury was in its favor. We have therefore no occasion to deal with any question affecting its liability. At the time of the shipment, the defendant issued to the plaintiff a receipt for the shipment, which included certain contractual conditions which will be referred to later. The plaintiff also alleged in his petition that the defendant agreed to make the shipment by a specified route, viz., to Aberdeen, S. D.; thence to Sioux City; thence to Cedar Rapids. He also averred that at the time the shipping receipt was issued, a bill of lading was also issued and exhibited to the plaintiff, and delivered to the conductor, which specified the route of shipment in accordance with the verbal agreement, as above stated. At the time of the issuance of the shipping receipt, it was contemplated that the plaintiff should accompany the shipment, and a pass was furnished him for the purpose. He was unable, however, to leave Miles City upon the train which included his car. He followed later upon a passenger train, and overtook the shipment at Selby, S. D seventy miles west of Aberdeen. At this point the horses were unloaded, and the plaintiff procured the necessary feed and water for the same. They remained in Selby from Tuesday afternoon until Wednesday morning, when they were again loaded, and their transportation was resumed. In some manner not explained in this record, the car was included in a train destined for St. Paul, instead of Sioux City. This fact was not discovered by plaintiff until some time after the train had passed through Aberdeen. He protested to the conductor, but without avail. The train reached St. Paul Thursday night, thirty-two hours after leaving Selby. Upon reaching St. Paul, the caboose in which plaintiff was riding was cut off from the train, and the switch engine took control of the train. The plaintiff, with the assistance of the conductor and the yardmaster, undertook to find his car, but was unable to do so. He was told that it would be at a certain transfer in the morning. This promise failed him, and he was unable to find his car the next morning. He applied at headquarters, and was directed to a certain office, whither he went. He was informed here that they could not locate the car, but would look it up speedily. He informed the persons in charge of such office that he desired to take a morning train home at half past eight, to which such person replied, "That was probably the best thing to do under the circumstances." He thereupon took his train for home. In support of the facts stated up to this point, the evidence is undisputed. The shipment reached Savanna at 4 o'clock Sunday morning. They were unloaded and fed at this point and forwarded later in the day to Cedar Rapids, where they arrived Sunday night, and were again unloaded. What care they had while at St. Paul, or whether they were fed or watered or unloaded there, does not appear from the testimony. When the shipment arrived at its destination, one horse was missing, another was cast in the car, and many were injured to a greater or less extent. The manes and tails of many of the colts were eaten off.

I. In the fifth instruction, the trial court instructed the jury on the theory that the plaintiff accompanied the horses, and instructed that: "It would be his duty while accompanying them to see to it that they were properly fed, watered, and otherwise cared for, and the burden is upon the plaintiff to show that any damage to said horses, if any, was not due to any fault or negligence on his part. If you have determined from the evidence, and under these instructions, that plaintiff has shown an agreement to carry the horses to Iowa City and that any injury thereto, if any, was not due to any negligence on his part, then he would be entitled to recover, unless the defendants relieve themselves of liability, as hereinafter instructed; and the burden is upon the defendants, in order to relieve themselves, to show that the damages to said horses, if any, were due to some cause over which they had no control." The appellant complains of this instruction. Its first complaint is that it was error therein to lay upon the defendant the burden of proof as to any alleged injury resulting to the stock while accompanied by the owner. The point here raised has been recently considered in the case of Mosteller v. I. C. Railway, 153 Iowa 390, 133 N.W. 748, and we will not repeat or review the discussion therein made. Under the holding in that case, the instruction above quoted is erroneous to the extent indicated by the italics.

II. The plaintiff pleaded that his contract of shipment was partly verbal and partly in writing. The trial court instructed the jury as follows: "As heretofore stated in these instructions, the plaintiff claims that his contract of shipment was partly verbal and partly in writing. Now, in this connection you are instructed that, under ordinary circumstances, it is the law that prior oral statements declarations, or representations are merged in a written contract, if one is subsequently executed covering the same subject matter; and this is true, unless it is claimed that the contract is partly verbal and partly in writing, and it is shown that the verbal portion is not in conflict with the...