Lackland v. Chicago & A. Ry. Co.

• Decision Date: 28 April 1903
• Citation: 101 Mo. App. 420,74 S.W. 505
• Court: Missouri Court of Appeals
• Parties: LACKLAND v. CHICAGO & A. RY. CO.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 505

101 Mo. App. 420

LACKLAND v. CHICAGO & A. RY. CO.^*

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

CARRIERS—PENS FOR LIVE STOCK—CONTRIBUTORY NEGLIGENCE—AVOIDING INJURY—DELIVERY —INSTRUCTIONS.

1. A carrier of live stock is required to furnish pens where the animals can be safely kept while waiting to be loaded for transportation; and it is at least open to the jury to find that pens on ground sloping to the south, with no shade, shelter, or water thereon, and an embankment to the south, shutting off the breeze, are not safe pens for fat hogs during June.

2. A shipper of live stock is not guilty of contributory negligence in putting them in the pens furnished by the carrier therefor till they are loaded for transportation, unless they are so obviously unsafe as to make it reasonably certain that injury to the animals must inevitably result.

3. Delivery of live stock to a carrier is complete, so that its liability as such attaches, where the shipper applies to the carrier's freight agent for transportation, and, at his direction, places the animals in the usual place for receiving them for shipment; the agent being then notified thereof, and taking directions for their shipment.

4. One not having framed and requested an instruction as to what constitutes delivery of freight to a carrier cannot complain that the court merely left it to the jury to determine whether the facts in evidence established delivery.

5. Reference to the pleadings in an instruction submitting to the jury whether stock delivered for shipment died by reason of the carrier's pens not being reasonably safe, "as stated in plaintiff's petition," is harmless; the other instructions fully defining the issues, so that such words could have been omitted without impairing the instruction.

6. A shipper of live stock put in the carrier's pens for shipment, having relieved their distress, when apprised of it, by giving them water, is not barred from recovery because of not having avoided the injury by getting water for them himself when they were first put in the pens.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Morrison Lackland against the Chicago & Alton Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

The contested cause of action in plaintiff's petition, upon which a trial before a jury resulted in a verdict for respondent, abridged, was as follows: That it was the duty of the defendant, as a common carrier of live stock, to provide and maintain safe and suitable pens at shipping points along its railway, in which to receive and safely keep live stock tendered for shipment; that on June 9, 1902, plaintiff arranged with defendant's agent to ship 82 fat hogs on June 10, 1902, from Mexico, Mo., to National Stockyards, Ill., and on June 10, 1902, plaintiff put said hogs in the pens for shipment on the first train of defendant which could take them to their destination, and notified defendant's agent, who received said hogs into its pens and custody, and accepted them for shipment; that when said hogs were put in said pens they were sound and healthy, and in good condition for shipment, but that defendant had so unskillfully, carelessly, and negligently constructed and maintained its stock pens as to render them dangerous and unsafe for the reception and keeping of fat hogs in warm weather, in this: that said pens were divided by three partition fences, running north and south across said pens, and along the south side of said pens, close to the fence on the south side, defendant negligently had thrown up a high embankment of dirt, and negligently and wrongfully had allowed a large amount of iron, timber, etc., to accumulate thereon, and carelessly allowed grass and weeds to grow in rank profusion and to a great height thereon, so that said embankment, débris, grass, and weeds entirely cut off the air and breeze from reaching and blowing upon live stock placed in said pens, and defendant, in violation of its duty as a common carrier, negligently failed to provide any sheds, shade, shelter, or other protection in said pens, and negligently failed to provide or supply said pens with water for the use of live stock placed in said pens for shipment in hot weather. The petition further alleged that the hogs were placed in said pens about 7 a. m. June 10, 1902, and were received and accepted for carriage, but defendant negligently failed to furnish plaintiff a train in which to ship them until 7 p. m. of the same day, which was hot, but no warmer than usual there in the summer months; that thereby the hogs, after being placed in said pens, and received and accepted for shipment in good condition, became overheated and sick, and 24 of them thus overheated died, and the remainder were depreciated in value. A motion to strike out parts of this complaint, charging that such portions stated conclusions of law, and that there was no law requiring defendant to provide stock pens with shelter, water, or other protection from the weather for live stock while waiting shipment in such pens, and a demurrer assigning that the facts stated constituted no cause of action, were alike overruled, and defendant joined issues by an answer containing a general denial, and a plea of contributory negligence in the particulars that plaintiff was familiar with the pens and knew they contained no shade nor water; that he put the hogs in the pens about 7 o'clock a. m. to await shipment at 6:30 p. m., when the weather was intensely hot, well knowing that they would not be loaded or forwarded before 6:30 p. m. of that day, and not intending or expecting to load them before 6 p. m., and after placing them in the pens he went off and left them without care and attention.

The facts developed at the trial were that about the 1st of June, 1902, the respondent, Morrison Lackland, had 82 fat hogs ready for shipment to market on his farm, about 2½ miles from appellant's stock pens in Mexico. Desiring to ship said hogs to the National Stockyards, East St. Louis, he called upon Guy Waite, freight agent of appellant at Mexico, whose business it was to make arrangements with shippers for the transportation of live stock, and in charge of appellant's stock pens at Mexico, and who had the key to the pens, on the day before the hogs were shipped, for the purpose of obtaining a car. Finding he could get a car the next day, he told Waite he would return home, select a...