Kinnick v. Chi., R. I. & P. Ry. Co.

• Decision Date: 23 October 1886
• Citation: 29 N.W. 772,69 Iowa 665
• Court: Iowa Supreme Court
• Parties: KINNICK AND OTHERS v. CHICAGO, R. I. & P. RY. CO.

69 Iowa 665

29 N.W. 772

KINNICK AND OTHERS

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

October 23, 1886.

Appeal from Davis district court.

Plaintiff delivered a car-load of hogs to defendant at Drakeville, in this state, for transportation to the Union stock-yards at Chicago. A passenger train on defendant's road was thrown from the track near Ottawa, Illinois, and the obstruction caused by the accident delayed the train on which the plaintiff's hogs were shipped for about 12 hours. When the train arrived at Chicago, 18 of the hogs were dead, and the others were so injured as to depreciate their value in market. Plaintiff brought this action to recover the damages occasioned by the injury, alleging that defendant had violated its undertaking as a common carrier to deliver the hogs in Chicago within a reasonable time and in good order; also, that the injury was caused by defendant's negligence. The defendant in its answer denied that the delay in delivering the hogs in Chicago was caused by any negligence on its part, and averred that the train was delayed by unavoidable accident; and averred that the hogs were loaded on the car by plaintiffs; that they had full charge of the work of loading them; that, without defendant's knowledge or consent, they overloaded the car; and that the injury to the hogs while being transported was occasioned by such overloading. The verdict and judgment were for plaintiffs, a motion for a new trial being denied. Defendant appealed.T. S. Wright, S. S. Carruthers, and M. A. Lowe, for appellant, cited Parsons v. Hardy, 14 Wend. 215;Bowman v. Teall, 23 Wend. 306;Michigan Cent. R. Co. v. Burrows, 33 Mich. 6.

Payne & Eichelberger, for appellees, cited McCoy v. Keokuk & D. M. Ry. Co., 44 Iowa, 426; McCune v. Burlington, C. R. & N. Ry. Co., 52 Iowa, 602;S. C. 3 N. W. Rep. 615;Clarke v. Rochester & S. R. Co., 14 N. Y. 570;Cragin v. New York Cent. R. Co., 51 N. Y. 61; Hutch. Carr. §§ 222, 322-335; McDaniel v. Chicago & N. W. Ry., 24 Iowa, 412;Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458.

REED, J.

1. Defendant offered evidence on the trial to prove that the wreck which obstructed the track, and delayed the train on which the hogs were being transported, occurred without fault on its part, and that it caused the track to be cleared, and sent the train forward, as soon after the accident as practicable; but the evidence was excluded by the court on the plaintiff's objection. Defendant sought to prove these facts in excuse of the delay in delivering the hogs at Chicago. There was no express undertaking by the defendant to transport the property to its destination within any specified time. The law, however, implies an undertaking by it to deliver it there within a reasonable time. But with reference to the time to be occupied in transporting the property the carrier is not held to the extraordinary liability to which he is held for its safety while it is in his custody, and he may excuse delay in its delivery by proof of misfortune or accident, although not inevitable or produced by act of God, (Hutch. Carr. § 330; Parsons v. Hardy, 14 Wend. 215;) so that, if plaintiffs had sought to recover merely on the ground that there was delay in the transportation of the property, there would be no doubt, perhaps, but that defendant would have been entitled to show the facts which the excluded evidence would have tended to prove as an excuse for the delay. But that is not the substance of their complaint.

It is true, they allege that there was delay, but they do not claim that they were damaged by the mere fact of the delay, and the ground upon which they seek to recover is that the property was in bad condition when it reached its destination. It was not disputed that the property was in bad condition when it arrived in Chicago. The burden was therefore on defendant to establish facts which would relieve it from liability because of its bad condition. It was an insurer of the safety of the property while in its charge for transportation, and it was not released from that extraordinary liability for its care by the accident which caused the delay, even though it offered an excuse for the delay. It was bound, notwithstanding the accident, to use the highest degree of care during the delay for the safety of the property. If the removal of the hogs from the car during the time was necessary for their protection from injury, and it was possible to remove them, defendant was bound to do so; and it was bound to give them whatever personal attention was necessary for their protection from injury during the time. But it did not offer...