Lewis v. Pa. R. Co.

• Decision Date: 09 November 1903
• Citation: 56 A. 128,70 N.J.L. 132
• Parties: LEWIS v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

56 A. 128

70 N.J.L. 132

LEWIS

v. PENNSYLVANIA R. CO.

Supreme Court of New Jersey.

Nov. 9, 1903.

(Syllabus by the Court.)

Appeal from District Court of Newark.

Action by Gustave Lewis against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued June term, 1903, before GARRISON, GARRETSON, and SWAYZE, JJ.

Vredenburgh, Wall & Van Winkle, for appellant.

Guild, Lum & Tamblyn, for appellee.

SWAYZE, J. The plaintiff, a dealer in live stock, shipped from Prospect, Ohio, to Newark, N. J., a car load of 21 cows and 3 calves, under a written contract made with the Hocking Valley Railway Company. The contract stated that the cattle had been received by the Hocking Valley Railway Company for itself and on behalf of connecting carriers for transportation, upon certain terms and conditions. These terms and conditions, as far as material to the case, were as follows: "That the said shipper is at his own sole risk and expense to load and take care of and to feed and water said stock, whilst being transported, whether delayed in transit or otherwise, and to unload the same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto except in the actual transportation of the same." The cattle were unloaded, watered, and fed at the East Liberty Stockyards near Pittsburg, Pa., and reloaded, when the plaintiff's agent who accompanied the train from Prospect, Ohio, left the train. The train started east from Pittsburg, September 21, 1902, at 11:21 a. m., and reached Altoona about 6 p. m. At that point it was noticed by the employes of the defendant that one of the cows was down in the car giving birth to a calf. They had the car taken from the train, unloaded, and the cow attended by a veterinary. The car was reloaded at 5:50 the next morning, with the exception of the cow already mentioned, and was attached to a train at 7:55 a. in. The train arrived at Waverly at 9 a. in., September 23d, and the car was ready for the delivery of the cattle between 10 and 11 o'clock. The cattle seemed to be in good condition between Altoona and Newark, but at the time they were delivered to plaintiff one calf was dead, one had a broken leg, and one cow was in such condition that it had to be hauled to the plaintiff's place of business, and there died. Many of the cows were in bad condition, so as not to be salable as milch cows. The cattle had no food or water for nearly 48 hours. There was a train by which these cattle might have been shipped, which left Altoona before the train which actually took the car, but the cow was still ill (it died subsequently), and this train was not a regular cattle train; and was known as a slow freight train. The district court judge gave judgment for the plaintiff.

The case fails to show the cause to which the bad condition of the cattle on their arrival in Newark was due. There is nothing in the agreed facts to show whether damages were allowed for the dead calf or the calf with the broken leg; but, as there is an explicit statement that no recovery was allowed for the cow and calf which died at Altoona, the natural inference is that the damages for these two calves, dead and injured at Newark, must have been included in the judgment. If they were not so included, the state of the case would have included them in the exception with the cow and calf which died at Altoona. The injuries to these calves are as likely to have been caused by the peculiar nature and propensities of the animals, as by any other cause, and if so caused the carrier would not be liable. Evan v. Fitchburg R. R., lll Mass. 142, 15 Am. Rep. 19; Clarke v. Rochester, etc., R. R. Co., 14 N. Y. 570, 67 Am. Dec. 205; Penn v. Buffalo, etc., R. R. Co., 49 N. Y. 204, 10 Am. Rep. 355; Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180, 27 Am. Rep. 28; Coupland v. Housatonic R. R., 61 Conn. 531, 23 Atl. 870, 15 L. R. A. 534. In the absence of proof as to the cause of death or of the broken leg, we cannot assume that these injuries were due to the fault of the carrier, rather than to the natural propensities of the animals. Pennsylvania R. R. v. Raiordon, 119 Pa. 577, 13 Atl. 324, 4 Am. St. Rep. 670; Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239. If the judgment included damages for the two calves, error was committed, unless there was proof that the injuries were due to the carrier's negligence, which does not appear in the state of the case.

We may, however, assume, in favor of the judgment below, that, as stated in counsel's brief, the judgment did not include an allowance of damages for these calves, and included only damages to the cattle arising out of the delay at Altoona, or out of the failure to feed and water. The state of the case does not show that the district court found it was negligent to hold the car 12 hours at Altoona. The car was held because one of the cows was giving birth to a calf and required attention. Delay, under such circumstances, seems to us an act of prudence, not of negligence. The case does not show any reason for holding that it was negligent not to forward the car by the slow freight train. It does not appear that the slow freight reached Newark in advance of the train which brought the car. If that was the fact, still the company was not negligent in holding the car, for the sick cow was still living. In considering delay in forwarding live stock, we must remember that a delay of at least five consecutive hours was imposed upon the carrier by act of Congress. Rev. St. § 4386 [U. S. Comp. St. 1901, p. 2995]. The interstate carrier is forbidden under a penalty to confine the cattle for a longer period than 28 consecutive hours without unloading for rest, water, and feeding. The time of transit between Pittsburg and Newark appears from the facts agreed upon to have been more than 28 hours. The...