Herran v. Chicago and Erie Railroad Company
| Decision Date | 27 April 1922 |
| Docket Number | 11,251 |
| Citation | 135 N.E. 253,78 Ind.App. 253 |
| Parties | HERRAN v. CHICAGO AND ERIE RAILROAD COMPANY ET AL |
| Court | Indiana Appellate Court |
From Huntington Circuit Court; George M. Eberhart, Judge.
Action by J. Oscar Herran against the Chicago and Erie Railroad Company and another. From a judgment for defendant, the plaintiff appeals.
Affirmed.
Eichhorn & Edris, Claude Cline and Cyrus F. Boyd, for appellant.
Bowers Feightner & Bowers and Adams, Follansbee, Hawley & Shorey for appellees.
Appellant who was a shipper, commenced suit against appellee December 9, 1919, in the Huntington Circuit Court on what is known as a shipper's live stock contract for damage to a shipment of hogs, on account of alleged negligence of the carrier.
The only error assigned and which is relied upon for a reversal is that the court erred in overruling appellant's motion for a new trial. The particular grounds for a new trial, upon which appellant predicates error, are that the decision is contrary to law; that it is not sustained by sufficient evidence, and relating to the rejection of certain evidence offered for the purpose of proving a waiver by appellee of the provision and requirement in the shipping contract that a claim for loss or damage must be made within five days, in writing, verified by the shipper or his agent.
Appellant states the uncontroverted facts established by the evidence to be that appellant on August 5, 1916, tendered to the appellee railroad company, which was a common carrier engaged in interstate commerce at Markle, Indiana, a carload of live stock consisting of ninety-six hogs and four calves, for shipment to Buffalo, New York; that a uniform live-stock contract was executed by appellant and appellee's agent, pursuant to the terms of which the railroad company accepted and undertook to ship said stock to its destination; that appellee railroad company knew appellant would not, and he did not, accompany said shipment; that appellee railroad company carelessly and negligently failed to properly care for said hogs en route by watering and cooling them, and because of said failure twelve of them were dead when the car reached its destination; that because of appellees' said negligence, appellant was damaged in the sum of $ 177.51; that a claim for the loss was presented about July 10, 1919, and appellees, without objecting to the fact that no verified claim in writing had been presented within five days as provided in the contract, investigated the claim and rejected it solely on the ground of no liability.
These undisputed facts taken with the terms and stipulations of the shipping contract, which was read in evidence, show no right of recovery in appellant. It was expressly provided in such contract that the shipper was at his own sole risk and expense to load and take care of and to feed and water the stock here involved whether the same was delayed in transit or otherwise. Appellant did not comply with this provision of his contract and failing so to do he cannot charge the company with negligence for failing to perform his duties under the contract. Lewis v. Penn. R. Co. (1903), 70 N.J.L....
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