Houchtelin v. Oregon Short Line Railroad Co.
| Decision Date | 31 October 1921 |
| Citation | 202 P. 571,34 Idaho 482 |
| Parties | A. L. HOUGHTELIN, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant |
| Court | Idaho Supreme Court |
RAILROAD STOCKYARDS-SUFFICIENCY OF-DUTY TO PROTECT SHEEP IN STOCKYARDS AGAINST ATTACK OF DOGS.
1. It is the duty of a railroad company to furnish suitable stockyards or pens in a reasonable state of repair and reasonably secure, whether they are to be used for the purpose of feeding, watering and resting livestock while being transported over its road, or are furnished for the reception of livestock intended to be shipped over its road.
2. The question as to whether stockyards provided by a railroad company are reasonably secure for sheep should be determined in view of the well-known fact that every city and village contains dogs, some of which are likely to attack sheep in pens if opportunity is afforded.
3. The duty rests upon a railroad to provide suitable stockyards for the reception and retention of livestock, independently of any conditions of the shipping contract.
4. The obligation of a shipper of livestock to discover defects in the yards in which he places his livestock for shipment over a railroad requires the exercise of only ordinary care.
5. The duty of a railroad company to furnish stockyards reasonably secure is unqualified.
APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.
Action for damages. Judgment for plaintiff. Affirmed.
Judgment affirmed, with costs to respondent. Petition for rehearing denied.
Geo. H Smith and H. B. Thompson, for Appellant.
The obligation of the carrier with respect to the sufficiency of the pens was only that degree of care and diligence that a reasonably prudent man would, under all the circumstances have exercised. (Chicago, R. I. & P. R. Co. v. Crenshaw (Tex. Civ. App.), 126 S.W. 602; Humphreys v. St Louis & H. R. Co., 191 Mo.App. 710, 178 S.W. 233; 2 Hutchinson on Carriers, 3d ed., sec. 510; 4 R. C. L. 969.)
In the exercise of ordinary care, the railroad company is not, in the absence of notice that vicious dogs are in the vicinity and apt to molest sheep, bound to anticipate that dogs will so molest such sheep, and to make its fences dog-proof as well as stock-proof. (Beckman v. Southern P. R. Co., 39 Utah 472, 118 P. 118.)
Where the shipper assumes responsibility for stock while off cars, he alone is responsible for failure to reasonably and properly protect the same. (Heller v. Chicago, G. R. T. R. Co., 109 Mich. 53, 63 Am. St. 541, and note, 66 N.W. 667; 4 R. C. L. 731; St. Louis, I. M. & So. R. Co. v. Hudgins Produce Co., 118 Ark. 398, 177 S.W. 400; Nunnelee v. St. Louis, I. M. & S. R. Co., 145 Mo.App. 17, 129 S.W. 762; Curry v. Seaboard Air Line R. Co., 156 N.C. 432, 72 S.E. 493.)
Walters & Hodgin and Carl De Long, for Respondent.
"It is the duty of a carrier to furnish suitable and safe facilities and appliances for loading and unloading stock at their shipping stations and to use due care in keeping such pens and loading appliances in a reasonably safe condition." (4 R. C. L. 972; note to St. Louis, S. F. R. R. Co. v. Beets, 75 Kan. 295, 89 P. 683, 10 L. R. A., N. S., 571; note to Norfolk & W. R. C. Co. v. Harman, 91 Va. 601, 50 Am. St. 855, 22 S.E. 490, 44 L. R. A. 289.)
It is common knowledge that ordinary dogs not accustomed to sheep, upon coming in contact with sheep for the first time invariably chase, and sometimes kill them. "The court will take judicial notice of common knowledge." (15 R. C. L. 1102, and authorities.)
This action was brought by respondent to recover damages on account of injuries to certain lambs while in the stockyards of appellant company at Filer. The lambs had been originally delivered to appellant under a contract issued at Murphy, which provided for the privilege of feeding in transit and subsequent reloading and shipping to final destination. The sheep were unloaded at Filer and kept for some weeks on the ranch of respondent for feeding. They were brought by respondent from his ranch and placed in the stockyards of appellant company on the evening of December 29, 1915, with the intention of loading them on the cars when the train arrived the following morning for the purpose of forwarding to their final destination. The evidence is conflicting as to whether or not appellant company was notified that the lambs were placed in the stock-pens. They were left in the pens unattended and during the night dogs entered and killed or injured 269 of them. The action was based upon negligence.
In his complaint respondent alleged that appellant had negligently failed and neglected to keep its stockyards in which the lambs were placed properly inspected and repaired, and negligently permitted said pens to be in a state where a plank was off of one of the panels of the fence on the north side of said corral, leaving the fence at that particular point lower than the remaining portions thereof, and that in addition to the fact that said board was off, appellant had caused or permitted sand, gravel and other material used in sanding cars for livestock to be piled up next to the fence, thereby making said fence unsafe and unsuitable for receiving and protecting sheep and lambs for shipment, in that these conditions made access to the yards easy for dogs or other animals destructive to lambs and sheep. Appellant denied the allegation of negligence, and pleaded in defense the provisions of the shipping contract, which, among other agreements, contained the following: "The shipper will, at his own risk and expense, load, unload, care for, feed and water said stock until delivery of same to consignee at destination, and will furnish to go with the stock for that purpose, one or more attendants. . . . " Appellant also alleged that respondent was negligent, in that he permitted the sheep to be abandoned in the night-time while they were in the pens waiting to be loaded on the cars, and that any damages which resulted to respondent were caused solely by reason of the carelessness and negligence of respondent and his servant in their failure to care for the sheep while off the cars.
Judgment was rendered and entered for respondent. The appeal is from the court's order denying motion by appellant for a new trial.
Appellant makes two specifications of error. First, that the court erred in denying defendant's requested...
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