Louisville & N.R. Co. v. Harned

• Decision Date: 19 December 1901
• Citation: 66 S.W. 25
• Parties: LOUISVILLE & N. R. CO. v. HARNED. [1]
• Court: Kentucky Court of Appeals

66 S.W. 25

LOUISVILLE & N. R. CO. v. HARNED. ^[1]

Court of Appeals of Kentucky.

December 19, 1901

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by M. R. Harned against the Louisville & Nashville Railroad Company to recover damages for breach of a contract for the shipment of live stock. Judgment for plaintiff, and defendant appeals. Reversed.

Lyttleton Cooke and Edward W. Hines, for appellant.

Jas. C Poston and J. P. O'Meara, for appellee.

PAYNTER C.J.

On April 7, 1897, the appellee delivered to the appellant several race horses for shipment, consigned to himself at Latonia, Ky. and among the others was a racing mare called "Pouting." The mare was delivered to the appellant at South Louisville, in a car specially constructed for the shipment of stock. While the mare was in transit, she was seriously injured, the appellee claiming that it was the result of the carelessness and negligence of the agents and servants of appellant. The evidence for appellee tends to show that she was thrown down in the car several times, and badly crippled, and permanently injured, so much so that she is useless for racing purposes. Appellee claims that the injuries were inflicted by reason of the manner in which the train was handled. The appellant denies the mare was injured by reason of any negligence or carelessness of its agents or servants in charge of the train, but avers that she received the injuries in consequence of her viciousness, unruliness and wildness or fright. At the time the horses were received for shipment, the appellee entered into a written contract with the appellant for their transportation, and by the terms of which the liability of appellant was attempted to be restricted in some respects. It is insisted upon behalf of appellant that the transportation of live stock on railways or by land carriers was unknown to the common law, and therefore that the shipping contract entered into between the parties was not a contract to relieve appellant from its common-law liability, and is not in violation of section 196 of the constitution. By orders the court eliminated this issue, which left alone the question as to whether the mare was injured by the carelessness or negligence of the agents and servants of the appellant. Many years before the adoption of the present constitution, this court, in Railroad Co v. Hedger, 9 Bush, 645, 15 Am. Rep. 740, held that a railroad company which undertook the transportation of live stock is not liable as insurer for all loss and injury not caused by the acts of God or public enemy, as in case of other property, but that it is bound to the exercise of that degree of diligence such as a prudent and careful man would exercise in such matters, and is liable for ordinary negligence. And the court also held in that case that a carrier could not by contract relieve himself from liability for negligence of himself or agents, whether ordinary or otherwise. So this rule obtained independent of the provisions of the present constitution. The court did not think it was a reasonable rule in the shipment of live stock to hold carriers to the strict accountability for loss as in the case of inanimate property, because, owing to the wild and vicious nature of animals, they might hurt themselves or each other, and therefore it was not a just rule to make a carrier responsible for injury to them except where it was the result of a failure to exercise ordinary care. In the same case the court held that, where the owner of stock agrees to load and unload it,--as in this case,--the burden of proof is upon him to show the injury causing the loss was the result of the negligence of the carrier, its agents or servants. The appellee assumed the...