Illinois Cent. R. Co. v. Rogers & Thomas
| Decision Date | 04 February 1915 |
| Citation | 172 S.W. 948,162 Ky. 535 |
| Parties | ILLINOIS CENT. R. CO. v. ROGERS & THOMAS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County; Common Pleas Branch Third Division.
Action by Rogers & Thomas against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed for new trial.
Trabue Doolan & Cox and S. Lyman Barber, all of Louisville, and R V. Fletcher, of Chicago, Ill., for appellant.
Thomas C. Mapother, of Louisville, for appellee.
On February 4, 1914, in the Jefferson circuit court, Rodgers & Thomas obtained a verdict and judgment against the Illinois Central Railroad Company in the sum of $219.10 for damages to a shipment of live stock which was delivered by them to and accepted by the railroad company at Leitchfield on April 29, 1913, for transportation to Louisville. It was shown in evidence by the plaintiffs that they loaded a mixed car of live stock at Leitchfield, in three separate compartments; in one end of the car, some calves and sheep; in the other end, eight head of cattle; and, in the middle and separated by partitions at either end, a lot of hogs. It was further shown that, on arrival of the car at Louisville, two hogs were dead, one cow crippled, and three or four others somewhat injured. The duty of doing the loading was assumed by the shippers; they loaded the car themselves without assistance of any of the carrier's agents; and the agent at Leitchfield did not examine the car after it was loaded. It was shown by the crew of the train which handled the car that at Kroft's a station some 25 miles from Leitchfield, they discovered that there was something wrong in the car, and made an investigation which disclosed that one hog was dead and another badly injured; one cow was down and three or four others injured; that about 15 hogs were in the same compartment with the cattle; that they must have been loaded that way, as the partition between the cattle and the remainder of the hogs was intact. The trainmen knocked this partition out, thus allowing all the hogs to be in the same compartment with the cattle.
1. The court instructed the jury that it was the duty of the railroad agent at Leitchfield to see that the live stock was properly loaded before receiving it for shipment; and that if they believed from the evidence that the railroad company accepted the shipment not properly loaded but in good condition, and that the live stock was injured or damaged or depreciated in value on delivery at destination, they should find for the plaintiff, unless they should further believe from the evidence that such injury or depreciation was caused by the inherent nature or propensities of the animals, or was due to causes beyond defendant's control, in either of which latter events they should find for defendant. Appellant complains of this instruction for the reason that its effect is to impose liability upon the carrier for loss or injury due to improper loading of the car by the shipper.
Appellees insist that the instruction is proper, and cite in support of their contention the case of L. H. & St. L. v. S. S. H. & C. Co., 157 Ky. 772, 164 S.W. 90. In that case the court, in illustrating what was meant by the rule that a carrier is not liable as an insurer for loss or injury caused by the act or fault of the shipper, said:
"For instance, under the fourth exception, * * * if goods are insufficiently packed, and this fact is not known to the carrier nor discoverable by the exercise of ordinary care, it is not liable for loss or injury due to such insufficient packing, if itself free from negligence."
But in stating the illustration quoted, the court had in mind only those instances where the goods are delivered in crates or packages to the carrier at its warehouse, there to be loaded into cars by the carrier, and not by the shipper. In such cases, the weight of authority is that, if the improper condition is not known to the carrier or discoverable by the exercise of ordinary care, it is not liable for loss or injury due to such insufficient packing, if itself free from negligence. 6 Cyc. 380; 4 R.C.L. Carriers, § 203; 18 Ann.Cas. 234, note; 29 L.R.A. (N. S.) 1214, note. But where the improper condition of the goods is known to the carrier or discoverable in the exercise of reasonable care in the ordinary handling and loading of the goods, and they are accepted by the carrier without qualification or dissent in respect of such condition, the carrier must handle the shipment with reference to such defective condition, and is liable for loss or injury thereto if negligent in respect thereof. The David & Caroline, 5 Blatchf. 266, Fed. Cas. No. 3,593; Union Express Co. v. Graham, 26 Ohio St. 595.
It is well settled by the almost unanimous authorities that where the carrier furnishes a car to the shipper for the purpose of shipping live stock therein, and the latter loads the live stock himself, and in doing so he overcrowds the animals or places in one compartment animals of different kinds, the risk of loss or injury is upon the shipper, being caused by his own act, or by his own act in conjunction with the inherent nature, propensities, and qualities of the animals themselves; the carrier not being liable for loss...
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