Kalina v. The Union Pacific Railroad Company

• Citation: 76 P. 438,69 Kan. 172
• Decision Date: 09 April 1904
• Docket Number: 13,603
• Parties: JOSEPH KALINA et al. v. THE UNION PACIFIC RAILROAD COMPANY
• Court: United States State Supreme Court of Kansas

76 P. 438

69 Kan. 172

JOSEPH KALINA et al. v. THE UNION PACIFIC RAILROAD COMPANY

No. 13,603

Supreme Court of Kansas

April 9, 1904

Decided January, 1904.

Error from Ellsworth district court; R. F. THOMPSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JURY AND JURORS -- Special Finding Construed. When the jury answers a special question, "We do not know," such answer is in the negative as to one upon whom the burden falls.

2. RAILROADS -- Exemption from Liability -- Burden of Proof. Where a common carrier seeks to defeat a recovery because of an exemption from liability contained in its contract of carriage, the burden rests upon it of proving that the lose falls within the exemption provided for in such contract.

3. RAILROADS -- Proof of Performance of Condition Precedent. Where the shipping contract contains a lawful provision requiring the shipper to do something as a condition precedent to recovery, the burden of showing the performance of such condition rests upon the shipper, and if he fail to show performance he cannot recover.

4. RAILROADS -- Immaterial Whether Condition Precedent be Pleaded. This rule applies Dot only to a case where it is made to appear during the progress of the trial that plaintiff is seeking to recover upon a shipping contract containing such condition, but also to one where it has been counted upon in his petition or set out as defensive matter by the carrier.

C. J Evans, for plaintiffs in error.

N. H. Loomis, R. W. Blair, and H. A. Scandrelt, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

The plaintiffs in error sought by this action, brought originally before a justice of the peace, to recover their damages occasioned by the railroad company's delay in transporting two cars of cattle from Ellsworth to Kansas City. The items of their damage were that they were compelled to sell on a lower market, and that the cattle had unduly decreased in weight by delay in transportation. It did not appear from their bill of particulars that any special shipping contract had been made. The plaintiffs had judgment without opposition in the justice's court, from which an appeal was taken. In the district court the railroad company asked that the plaintiffs be required to make their bill of particulars more definite and certain by setting out whether their contract of shipment was oral or in writing, and, if in writing, by attaching a copy thereof to their bill of particulars. This was refused by the court. Upon the trial, and as a part of the cross-examination of plaintiff, it was shown that the shipping contract was in writing, and the plaintiff produced the same and introduced it in evidence. This contract contained the following stipulation:

"Unless claims for loss, damage or detention are presented within ten days from the date of the unloading of said stock at destination, and before said stock has been mingled with other stock, such claims shall be deemed to be waived, and the carriers and each thereof shall be discharged from liability."

The jury found a general verdict in favor of the plaintiffs, and answered, "We do not know," to the following special question: "Did he (plaintiffs) give it notice of his claim before his cattle had been mingled with other stock?" The company's motion for judgment upon the special finding, notwithstanding the general verdict, was allowed by the court, and judgment rendered against the plaintiffs for costs. This is the judgment they now seek to have reversed.

The answer of a special question made as this was is, as against the party on whom rests the burden of proof, in the negative or that such party has failed in his proof. (Railroad...