"This action for damages arose out of a shipment of 5,018 Western sheep from Nashua, Mont., to Mexico, Mo. The petition is in three counts. Plaintiff dismissed as to the second count, and the jury returned a verdict for defendant on the third, so we are only concerned with the first count of the petition, on which the jury based a verdict for plaintiff for $1,000. Defendant appeals from a judgment following the verdict.
"The first count of the petition as amended charges that on the 30th day of September, 1917, plaintiff delivered to the Great Northern Railway Company at Nashua, Mont., 5,018 head of sheep, the property of plaintiff, for shipment to Mexico, Mo., that on arrival at St. Paul, Minn., they were turned over to the connecting carrier, Chicago Great Western Railroad, and by said last-mentioned road transported to Des Moines, Iowa, where they were delivered on October 5, 1917, at about 9:30 p. m. to the defendant, Wabash Railway Company, an a connecting and terminal carrier in said transportation from Nashua, Mont., to Mexico, Mo.; that at the time said sheep had been confined in cars without feed, water, or rest for a period of 25 hours next preceding the time of their delivery to defendant; that defendant, well knowing that said sheep had been so confined, and well knowing that said sheep should not be kept confined in said cars continuously for a period greater than 28 hours, and well knowing that, if said sheep were not unloaded at Des Moines for feed, water, and rest, but were continued in transit to said Mexico, Mo., that defendant would be required at the expiration of said 28 hours from the time said sheep were last unloaded to again unload the same, and defendant well knowing that said 28-hour period would expire within a short time, and before said train could reach Mexico, Mo., and defendant well knowing its pens and facilities at its stations between Des Moines and Mexico were and would be unsuitable and inadequate in which to feed, water, and rest plaintiff's sheep, defendant carelessly and negligently continued said transportation of said sheep from Des Moines, keeping them confined in said cars for an additional 12 hours, making in all 37 hours of continuous confinement in said cars without feed, water or rest.
"It is further charged in the first count of said petition that defendant unloaded said sheep at Moberly, Mo., a point on its line between Des Moines and Mexico, and at a place where it failed to have and provide suitable and adequate pens and inclosures, and failed to provide and have the necessary means and facilities at the place for watering and feeding said sheep, and that by reason thereof said sheep could not and were not properly watered, fed, and rested at said unloading place. It is also charged, that upon arrival of said sheep at Des Moines, Iowa, defendant could by the exercise of ordinary care have completed the transportation to Mexico. Mo., within the 36-hour period, but that it failed to do so. It is then alleged that, by reason of said acts of negligence on the part of defendant, plaintiff's shoe') were caused to and did suffer great and excessive shrinkage, to the plaintiff's damage in the sum of $3,960, and that plaintiff by reason of said careless and negligent. acts was compelled to and did pay extra expense for feeding said sheep at Moberly, Mo., in the sum of $74, all to the plaintiff's damage in the sum of $4,034, for which sum judgment is prayed.
"Defendant's answer was a general denial, coupled with a special defense to the effect that plaintiff entered into a written contract with the Great Northern Railway Company for the transportation of said sheep, and that the said shipment was undertaken by that company under said contract; that the transportation by it and the connecting carrier and the defendant was under said contract; that the contract provided that the carrier should not be liable for loss or injury, unless caused by its negligence, and the shipper =was to load and unload said stock, and feed and water at his own expense, and securely place all stock in cars, and keep same locked to prevent escape; that said con., tract also provided that the amount of loss or damage to the stock should be computed on the basis of the value at the place of shipment, which value the shipper agreed was $1 per head; and that liability should be limited to that sum.
"The answer also set up that plaintiff executed and delivered to said initial carrier, for the benefit of it and the defendant, a request and release in writing, requesting the shipment of said 16 cars of sheep, then in cars, to be kept upon said cars and continued in transit until the expiration of 36 hours from the time they were loaded or might thereafter be loaded in cars; that on October 5, 1917, the defendant received said shipment at Des Moines from the connecting carrier, Chicago Great Western Railway Company, and that the same had not been confined in cars at that time for a period of 36 hours, nor for a period of 28 hours, and that the defendant transported said sheep in due course, and at the end of the period of 36 hours unloaded the same at Moberly, Mo., its first available station and place of unloading, where the same could be watered, fed, and rested, and that said sheep were watered, fed, and rested for a period of 5 hours, and thereafter reloaded and transported to the destination of said shipment at Mexico, Mo., where the same were received by the plaintiff.
"The principal question presented by the appeal is whether or not plaintiff's evidence was sufficient to warrant submitting to the jury the question of whether defendant was guilty of negligence in the shipment of said sheep in the particulars specified in the petition.
"Before examining the evidence, it may be well to ascertain the duty and obligation of the carrier under the law referred to. The statute provides that a railroad company, engaged in transporting cattle, sheep, swine, or other animals from one state to another, is prohibited from confining the same in its cars for a longer period of time than 28 consecutive hours without unloading for rest, water, and feeding for a period of at least 5 consecutive hours, unless prevented from doing so by accidental causes. It is further provided, however, that on the written request of the owner or person in the custody of the shipment the time of confinement may be extended to 36 hours. It is further provided that the animals so unloaded shall be properly fed and watered during such rest by the owner or persons in charge, or, in case of his default, by the carrier transporting the stock, at the expense of the owner or the custodian, and that the carrier shall have a lien on the animals for food, care, and water furnished. Under the statute it is the duty of the carrier, not only to unload the animals within the stated period, but also to provide reasonably suitable conveniences for feeding, watering, and caring for the animals, and a place reasonably suitable and sufficient to allow the animals to obtain rest. Brockway v. American Express Co., 168 Mass. 257, 47 N. E. 87; St. Louis, etc., R. R. Co. v....
