Johnson v. Alabama & Vicksburg Ry. Co.

• Citation: 11 So. 104,69 Miss. 191
• Parties: J. W. JOHNSON ET AL. v. ALABAMA & VICKSBURG RAILWAY COMPANY
• Decision Date: 09 November 1891
• Court: United States State Supreme Court of Mississippi

11 So. 104

69 Miss. 191

J. W. JOHNSON ET AL. v. ALABAMA & VICKSBURG RAILWAY COMPANY

Supreme Court of Mississippi

November 9, 1891

FROM the circuit court of the first district of Hinds county. HON J. B. CHRISMAN, Judge.

The appellants, J. W. & J. F. Johnson, shipped a mixed car-load of Cattle and hogs from Morton to Jackson, Miss. Both places are on the A. & V. Railway, the distance between them being thirty-five miles. The contract of affreightment was the ordinary stock contract, which, in consideration of reduced rates, and of through transportation to the shipper or his agent, stipulated in favor of the railway company that it should be exempt from liability for all damages incident to railroad transportation not caused by its own fraud or gross negligence. It further stipulated that the business of the company should not be delayed by the detention of trains to unload or reload stock for any cause whatever; but cars might be left at a station, upon request of the person in charge of the same, to be forwarded by the next freight-train, provided the condition of the stock required that they be fed and rested. It further provided that in case of delays the shipper should feed and care for his stock at his own expense.

The car contained thirty-five head of cattle and forty hogs, and there was some conflicting evidence as to whether the car was overloaded.

The train was delayed along the route, and when it reached Brandon, twelve miles from Jackson, the cattle were found to be suffering, and several of them were down. The agent of the shipper, who was on the train accompanying the car, thereupon appealed to the conductor to allow the car to be switched and laid out, but the conductor refused, giving as his reason that the stock-pen there would not confine the hogs, and saying that he would soon make the run to Jackson, and the stock could then be unloaded. Before reaching Jackson there was another delay of an hour or more, and considerable switching of the car at a flag-station, so that the train arrived at Jackson after being about five hours on the road. There was a further delay of about two hours after the train reached the station before the car containing the stock was switched off to the cattle-pen and the opportunity given to unload. Meantime the train did much switching, made necessary by the presence in the switch-yard of other freight-trains and the fact that the passenger-train, expected to arrive about that time, had the right of way of the track. There was evidence tending to show that this switching was attended with violent shocks to the cattle. When the car was finally delivered at the stock-pen, several of the cattle were dead others were injured, and it was found that several of the hogs had escaped.

This action was brought by the shippers, who were also the consignees, to recover for their damage, consequent upon the alleged negligence of the company. On the trial, the court gave for the defendant the following instructions:

"2. The contract in evidence, though signed several days after the loading of the stock, is the contract made at the time of shipment, and under it the plaintiffs stipulated that the business of the company shall not be delayed by detention of trains to load or unload stock, and if the jury believe from the evidence that after the train arrived at Jackson the stock-car was placed at the stock-pen as soon as it reasonably could be, in view of the incoming of the passenger-train and the switching of the cars of the Illinois Central Railroad, the jury will find for defendant.

"3. If the jury believe from the evidence that the stock in controversy was shipped by the plaintiffs or their agent Tennant, from Morton, to be transported to Jackson, upon the contract/read in evidence, the consignee of plaintiffs assumed thereby all risk of injury, loss or damage, or depreciation which the animals might suffer in consequence of their being weak, or escaping, or injuring themselves or each other, in consequence of unloading, heat, suffocation, fright or viciousness, and all other damages incidental to railroad transportation, unless such damages shall have been caused by the fraud or gross negligence of defendant, and it devolves upon the plaintiffs to show that such fraud or negligence occasioned the loss and damage."

Verdict and judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

C. M. Williamson, for appellants.

The second instruction is erroneous. It leaves out of the question any negligence proven to have occurred before the train reached Jackson, and tells the jury that under the contract the company is not liable for delay occasioned by its waiting for another company to switch its cars. The jury might have believed that the stock were injured at the flag-station, or because of the delay along the route, or because of the refusal to unload at Brandon. The...