Kain v. Kansas City, St. J. & C. B. R. Co.

• Decision Date: 06 February 1888
• Parties: JAMES C. KAIN et al., Respondents, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

29 Mo.App. 53

JAMES C. KAIN et al., Respondents, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

February 6, 1888

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

Statement of case by the court.

This is an action to recover damages arising from the negligence of defendant in carrying a carload of chickens shipped by plaintiffs over the defendant railroad from Kansas City to Denver, Colorado. The petition alleges that the chickens were delivered to defendant in good order; that defendant agreed for a valuable consideration, to receive and transport the same; that, by the negligence of defendant, the car containing the chickens was, at Kansas City, thrown against another car with such force as to kill and destroy fifty-two dozen of said chickens, of the value of $338, and to destroy coops of the value of $5.60, for which judgment is asked.

The answer admitted that defendant was a corporation. After tendering the general issue, it further pleaded: " That if any loss occurred to plaintiff, such as is mentioned in the petition (which is denied), such injury occurred from the carelessness and negligence of the plaintiffs in this: They used in shipping said chickens, coops insufficient in strength of material, and illyconstructed, so that they could not and did not sustain the ordinary usage and handling necessary in such shipment; that the plaintiffs were also negligent, in that they over-crowded said coops, putting into each more than twice the number of chickens suitable and safe for shipment over that distance during the weather at the time; that they piled them one upon another, in such number and with such weight that they crushed each other; that they did not, in loading the coops into the car, provide for suitable or sufficient ventilation for the same; that they during the journey, did not properly and sufficiently provide water and feed for the said chickens, and at the time said chickens left the yard of the defendant, at Kansas City, the plaintiffs knew that they were then sick from some disease peculiar and incident to such fowls, and were dying from said disease."

The reply tendered the general issue as to the new matter set up in the answer.

At the trial the following special issues of fact were, at defendant's suggestions, submitted to the jury, whose returns thereto are appended to the said issues:

" 1. How many chickens were delivered to defendant for shipment? A. Two hundred and seventy-four dozen."

" 2. Were said chickens all healthy and in good condition when so delivered? A. Yes."

" 3. Were any of said chickens dead before they were removed from defendant's side track? A. Six to eight."

" 4. If so, did they die from any fault of defendant? A. No."

" 5. If any died through defendant's fault, how many, and in what did that fault consist? A. Twenty-nine dozen. Carelessness in switching car at Kansas City."

" 7. How many of the chickens shipped were delivered to the plaintiffs at Denver, Colorado? A. Undecided."

" 9. How many coops were there? A. Evidence not sufficient to determine."

" 10. What were the dimensions of the coops? A. 3x5x1 feet."

" 11. How many chickens were there in each coop? A. Three and one-half to four dozen."

" 12. Did the coops contain them with ease and safety or were they crowded? A. Not unduly crowded."

" 13. Were the coops loaded in the car one on top of the other, until the piles of the coops were about six feet high? A. Yes."

" 14. Was there a space left between the rows of coops of about two feet after they were placed in the car? A. Yes."

" 15. After the coops were placed in the car were they braced in such a manner as to prevent them sliding about in the car? A. Yes."

" 16. If so, how and in what manner were they braced? A. By studding and plank."

" 17. Were the coops strong and sufficient for a long journey when each coop was full of chickens, and when piled upon each other to the height of six feet? A. Yes."

" 18. Were said chickens provided with feed and water before leaving Kansas City? A. Yes."

" 19. Were said chickens fed and watered by any one after leaving Kansas City? A. No evidence on that point."

" 20. Was the amount of water and feed given them at Kansas City sufficient for them until they reached Denver Colorado? A. No evidence as to the amount of feed given them at Kansas City."

" 21. Was the car containing said chickens handled carefully while being transferred from the side track to the main track at Kansas City? A. No."

The jury also returned a general verdict for plaintiffs, assessing their damage at $216.76.

Plaintiffs' evidence tended to support the issues on their part.

The defendant's evidence also tended to support the special issues respecting the negligence of plaintiffs, except as to the allegation of negligence in failing to water and feed the chickens in transit. There was some evidence offered by defendant tending to show that some of the chickens were sick at Kansas City, with chicken cholera, but there was no evidence that such fact was known to plaintiffs. Plaintiffs' evidence tended to rebut that offered by defendant respecting the contributory negligence imputed to the plaintiffs in the answer.

On behalf of plaintiffs the court gave the following instructions:

" 1. The court instructs the jury that if they believe, from the evidence, that the plaintiffs did, on or about the sixteenth day of May, A. D., 1884, deliver to the defendant railroad company, at Kansas City, Missouri, properly cooped and loaded, one carload of live chickens, to be shipped to Denver, Colorado; that the defendant received and agreed to transport the same; that part of said chickens were killed, destroyed, and lost, on account of the carelessness and negligence of defendant, in causing to be thrown the car containing the chickens, with great force, against another car, so as to kill and destroy a portion of said chickens, as charged in the petition, then they will find for plaintiffs."

" 2. The court instructs the jury that if they find for plaintiffs they will assess their damages at the value, at Denver, Colorado, of the chickens and coops destroyed, killed, or lost by the default, carelessness, or negligence of the defendant; that, in so doing, they will take said value as of the time said chickens and coops were and should have been delivered in Denver, and they will allow interest from that date at six per cent. on the amount so found."

The court, of its own motion, gave the following instructions:

" 1. The court instructs the jury that it was plaintiffs' duty so to pack, store, arrange, and brace the coops containing the chickens, as to have them in a reasonably safe condition for ordinarily careful handling, and if they believe, from the evidence, that the damage complained of was due to want of proper packing, storing, arranging, or bracing, then their verdict should be for defendant."

" 2. The court instructs the jury that if they believe, from the evidence, that the chickens in question in this suit were sick when placed in the car in question for shipment to Denver, and they died from said sickness and not from causes alleged in plaintiffs' petition, then their verdict must be for defendant."

The court refused the following instructions asked by defendant:

" 1. The court instructs the jury that, under the pleadings and all the evidence in this case, their verdict must be for the defendant."

" 3. The court instructs the jury that it was plaintiffs' duty to so pack, store, arrange, and brace the coops containing the chickens, as to have them in a safe condition for ordinary handling, and if they believe, from the evidence, that the damage complained of was due to want of proper packing, storing, arranging, or bracing, then their verdict should be for defendant."

" 4. The court instructs the jury that if they believe, from the evidence, that the chickens in controversy in this suit were sick when placed in the car in question, for shipment to Denver, and they died from sickness, then their verdict should be for defendant."

" 6. The court instructs the jury that if they believe, from the evidence in this case, that plaintiffs loaded said chickens in an improper manner, and the damage to said chickens was occasioned by, or on account of, said improper loading, their verdict must be for the defendant."

" 9. The court instructs the jury, that if they believe, from the evidence, that plaintiffs were guilty of negligence in not properly constructing, bracing, storing, or arranging the coops containing the chickens, or in over-crowding the coops with chickens, or in not supplying sufficient food and water for the chickens, and that the negligence contributed to the damage complained of in their petition, plaintiffs cannot recover in this case."

RIEGER & BUCKNER, and STRONG & MOSMAN, for the appellant.

I. The petition is fatally defective in this, that it contains no allegation that the defendant was a railroad company, or that it was a common carrier. 1 Rorer on Railroads, chap. 26, p 654, sec. 4. There being no such allegation in the petition, evidence which tended to show that defendant was a railroad company or a common carrier was inadmissible. Where loss or damage is claimed in the carriage of live stock, the burden of proof is upon the plaintiff claiming such damages to show that the company actually contracted to carry the property in question as such, or else held itself out to the public as a common carrier of this kind of property; and the company, as defendant in such actions, will not be bound to show any facts going to qualify their liability as common carriers, until it shall have first been shown, or proof be first given, tending to show...