Kansas City, M. & B.R. Co. v. Heard
| Decision Date | 05 February 1906 |
| Parties | KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY v. JASON W. HEARD |
| Court | Mississippi Supreme Court |
FROM the circuit court of Monroe county, HON. EUGENE O. SYKES Judge.
Heard the appellee, was the plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.
Judgment affirmed.
J. W Buchanan, for appellant.
It is in evidence, and undisputed, that the stock was loaded by appellee himself; it is in evidence, and not denied, that the stock was all standing up in the cars at Amory and on arrival at Tupelo; it is in evidence, and not denied, that the stock was carried to the point of destination of appellant within a reasonable time and without delay. Appellant proves by the conductor, flagman, and engineer that there was no rough handling of these cars between the points above mentioned.
It is in evidence, and not denied, that these cars were put in the rear of the train, so that they would not be disturbed in switching; that these cars were not switched during the journey; and that appellant in only two places cut off the front of the train from the rear and put out some cars without in the least disturbing the cattle except what might necessarily result from making the coupling. It is in evidence, and not denied, that this stock was in poor condition for shipment. Appellant's and appellee's witnesses both testified to this.
We submit that whether there were ninety-five or one hundred and twenty cows in each of the thirty-six-foot cars, common sense teaches there was a serious question whether or not they were overcrowded. Appellee's own witnesses say the cars were to some extent overcrowded, while these witnesses had seen as many cattle shipped prior thereto.
Now, does not the condition of the stock, as shown by appellee's testimony and the affirmative proof of appellant's witnesses, and not denied, make out at least a prima facie case that required appellee to overcome by testimony, showing some negligent act between the point of shipment and that of destination?
Again, beside the fact that the testimony shows that there were twenty-five more cows called for in the bill of lading than were put in the cars, we again call the court's attention to the testimony on this point, although we submit that appellee is estopped under this contract if the cattle escaped out of the doors that they attempted to prove existed in the cars. It is in proof, and not denied, that the cars were sealed with a C. P. seal, the only seal of that character on the line; and it is in evidence, and not denied, that this same seal was unbroken when the cars arrived at Amory, Miss. It is in proof by both conductors that this seal was intact when the cars were delivered at Amory and intact when the conductor started with the cars from Amory to Tupelo. It is in proof that when these cars were delivered to the Mobile & Ohio Railroad the seal was intact, and the Mobile & Ohio employes themselves broke the seal and made the count, and appellee's own witnesses only make out, dead and alive, in both cars, ninety-five head of cattle.
There was no possible way for these cows, as shown by the testimony, to have gotten out of the car, except to jump through a window that is in the top of each end of the cars, or by breaking open the doors, when the seals would have to be broken. Appellee finished loading at the time of night when it was impossible to count the cattle, and the contract shows that the agent signed the contract, which says the number "is supposed to be one hundred and twenty cows." This indicates that he did not count or rely on his own information as to the number of cattle in these cars. Is it reasonable to suppose that these twenty-five head of cattle could have gotten out of those cars with the seals of the same unbroken? Under these facts the court below should have decided that there was not sufficient testimony to sustain the verdict of the jury, either for the cattle that were killed or for those claimed to have been in the cars.
Gilleylen & Leftwich, for appellee.
It will be seen that appellee Heard did not sue on the contract or bill of lading--which, of course, he was compelled to sign in order to get his cattle shipped, as every other shipper of cattle is, whether he likes the terms of it or not--but he sues in tort for the wrong and injury done his cattle by appellant road in transit, just as was done by appellant in the case of Waters v. Mobile & Ohio R. R. Co. 74 Miss. 534 (s.c., 21 So. 240). The bill of lading is now in evidence in this case; but it was introduced by the railroad, and not by the appellee. It is shown that appellee also made claim against the Mobile & Ohio Railroad. Of course, when his cattle were injured, he could not afford to do otherwise than make claim against both roads until he could investigate and find out which railroad did the mischief.
We reply to all of the portions of the contract adduced by appellant's counsel by saying that the railroad cannot contract against its own negligence. Carriers are insurers of goods. Express Co. v. Seide, 67 Miss. 609 (s.c., 7 So. 547); Railroad Co. v. Bogard, 78 Miss. 11 (s.c., 27 So. 879).
It is manifest by even a casual reading of the record that the railroad not only did not make out even a prima facie defense, but wholly failed to show due care in the transportation of these cattle.
Suppose in this case we had sued the last carriers--the New Orleans & Northeastern Railroad Company and the Mobile & Ohio Railroad Company. They would have at once exculpated themselves by showing that the injury was done before the cattle reached their roads, and that they refused to receive...
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