Heller v. Chicago & G.T. Ry. Co.

• Decision Date: 31 March 1896
• Citation: 66 N.W. 667,109 Mich. 53
• Parties: HELLER v. CHICAGO & G. T. RY. CO.
• Court: Michigan Supreme Court

66 N.W. 667

109 Mich. 53

HELLER v. CHICAGO & G. T. RY. CO.

Supreme Court of Michigan

March 31, 1896

Error to circuit court, Saginaw county; Robert M. McKnight, Judge.

Action by Gustav Heller against the Chicago & Grand Trunk Railway Company for injury to cattle shipped over defendant's road. From a judgment for plaintiff, defendant brings error. Reversed.

Where a declaration contains several grounds of negligence, the court should instruct the jury as to those on which alone recovery may be had, and eliminate the others.

Plaintiff's firm, of which he is the survivor purchased some cattle at the stock yards in Chicago. His agent ordered a car from the defendant company in which to ship them. The car was furnished, and was 33 feet long and 8 feet wide upon the inside. Into this car were loaded 24 steers, weighing 25,800 pounds, or 1,075 pounds each. The defendant was not responsible for the loading. Plaintiff could put in as many or as few cattle as he chose. The car was to be shipped over the defendant's road to Flint Mich., and from thence over the Flint & P�re Marquette Railway to Saginaw. The usual time for the performance of the journey was from 24 to 32 hours. The loaded car was then delivered to the defendant for transportation. The train consisted of 24 cars, the others being loaded with hogs. The car left Chicago at 2:30 p. m., March 14th, and reached Saginaw at 4:15 a. m., March 16th. Plaintiff furnished no man to accompany the cattle and take care of them on the route. The train was supplied with air brakes, the same as are in use on passenger trains, so that stops and starts could be made with as little jar or jerk as possible. On arriving at a station called "Hazlitt Park," toward noon of the 15th, the conductor discovered that three of the cattle were down, and that they all appeared restless and uneasy. He testified that the car was overloaded, that he wired the superintendent for a larger car, and asked for instructions. On arriving at Bancroft, 19 miles further about noon, in obedience to instructions, this car of cattle was sidetracked, the cattle taken out, watered, fed, and rested 11 hours, a larger car furnished, the cattle loaded in it, and the journey completed. Before arriving at Bancroft one steer had died. His body was removed, and it was reloaded in the large car with the other cattle, and shipped to Saginaw. The cattle were delivered in bad condition, their flesh bruised, some ribs broken, and one dead. Plaintiff brought suit to recover damages for the injury, and obtained a verdict of $150. The declaration contains six counts, some based upon the common-law liability of the defendant as a common carrier, and others based upon alleged negligence. The court, in its instructions, eliminated the counts as to the common-law liability, and left it to the jury to determine under the first two counts, whether the defendant was guilty of negligence which caused the injury. These two counts are substantially the same. On account of the importance of the case, we quote the allegation of negligence in full. It is as follows:

"Yet the said defendant, not regarding its said duty in that behalf, did not carry and convey said cattle in said car of said defendant from said Chicago to said Saginaw, with such reasonable dispatch and care, and did not feed, water, and properly care for the same, but wholly failed and neglected to do so. That said cattle, after being so placed in said car at said Chicago at said time, to wit, 7 o'clock in the forenoon of the 14th day of March, 1893, were carried, and said car was hauled, negligently, and with such want of reasonable care and dispatch, by said defendant, from said Chicago to said Saginaw, that said car did not arrive at said Saginaw until, to wit, 10 o'clock in the forenoon of the 16th day of March, 1893; and that said defendant, contriving and willfully intending to injure and defraud the said Gustav Heller, surviving partner of Mary Hubert and Gustav Heller, as aforesaid, negligently and carelessly, and without reasonable dispatch, hauled said car, containing said cattle, from said Chicago to said Saginaw, without devoting any care or attention to said cattle whatever, without food, water, change of position, or care. Said cattle had not been fed or watered since leaving said Chicago as aforesaid, and could not, owing to their position in said car, lie down. That the weather during all of said time was extremely cold. That said cattle were continuously in said car from said 7 o'clock of the forenoon of said 14th day of March, 1893, until 10 o'clock in the forenoon of the 16th day of March, 1893, without food, water, care, or opportunity to lie down, and without adequate protection from the extreme cold, and, owing to their number, were during all that time in a cramped and uncomfortable position in said car; and that said cattle, by reason of such neglect and delay in transportation as aforesaid, and want of food, water, and care, and long confinement in said car in said cramped and uncomfortable position, and without any fault or negligence on the part of said Gustav Heller, surviving partner of the said Mary Hubert and Gustav Heller, suffered greatly thereby, and became, by reason of said cold weather, want of food, water, room, and care, sick, sore, lame, weak, bruised, jammed, gored, ribs broken, and disordered, and so remained for a long space of time, to wit, from thence hitherto, and became and were greatly reduced in value. And by reason of the neglect and delay of defendant in transporting said cattle as aforesaid, and the sickness and suffering occasioned by the delay, and by said cold and want of food, water, and care as aforesaid, one of said cattle of and belonging to said Gustav Heller, surviving partner of said Mary Hubert and Gustav Heller aforesaid, and of the value of $55, was found dead when said car arrived at Saginaw as aforesaid. Six other cattle were badly bruised all over, jammed, gored, and their ribs broken and damaged to the extent of $180. Thirteen others were jammed, bruised, gored, and lacerated, and in a weak, damaged, and dying condition, and damaged to the extent of $135."

The fact is established belond controversy that it is customary for shippers of live stock to send a man with the train to look after their cattle, to keep them upon their feet, and to attend to watering and feeding them. No neglect is shown in the management of the train, unless it is to be inferred from the fact of the injury to the animals. There was no collision, and those in charge of the train testified that it was run in the usual manner, and without accident, from Chicago to Flint.

L. C. Stanley (E. W. Meddaugh and Geer & Williams, of counsel), for appellant.

Ferdinand Brucker and Chauncey H. Gage, for appellee.

GRANT, J. (after stating the facts).

It is of importance to state what grounds of negligence are set forth in the declaration. They are as follows: (1) Delay in transit; (2) failure to feed, water, and properly care for them; (3) in keeping them in the car from 7 o'clock on March 14th until 10 o'clock on March 16th, without food, water, care, or opportunity to lie down, and without adequate protection from the cold; (4) placing them in the car in a cramped and uncomfortable position. The declaration, in summing up the cause of the injury, states that it was "occasioned by the delay, and by said cold, and want of food, water, care, and room." Upon these allegations, or some of them, must rest the plaintiff's right of recovery.

We will first note those which must be eliminated: (a) Plaintiff suffered nothing by delay, and did not upon the trial, and does not now, ask recovery upon that basis. The cattle were not kept in the car, as charged, but were removed and fed and watered within the time required by the interstate commerce law of the United States. Rev. St. U.S. � 4386. They were properly watered and fed. Those in charge of the cattle at Bancroft so testified. There is no evidence to the contrary, and nothing to impeach the witnesses. (b) He cannot recover for want of room. If the car was overloaded, this was his own fault. Plaintiff conceded this, and claimed that the car was not overloaded. The court properly instructed the jury that, if overloading was the cause of the injury, plaintiff could not recover. (c) Defendant was not responsible for any injury from the cold weather, nor was there any evidence that the cattle suffered from the cold.

There is, therefore, left only the question whether the defendant performed its duty in properly caring for the animals, for want of care is the only basis upon which a recovery can be had. It is not alleged or claimed that there was negligence in the management of the train. This brings us to the important questions: What risk did plaintiff assume? And what duty did defendant owe to plaintiff in the care of the property committed to it for transportation? The court instructed the jury that the defendant...