Louisville & Nashville R.R. Co. v. Mason

• Decision Date: 30 April 1883
• Citation: 79 Tenn. 116
• Parties: Louisville & Nashville Railroad Company v. Bartlett Mason.
• Court: Tennessee Supreme Court

79 Tenn. 116

Louisville & Nashville Railroad Company

v.Bartlett Mason.

Supreme Court of Tennessee.

April Term, 1883.

FROM GIBSON.

Appeal in error from the Law Court at Humboldt. J. T. CARTHEL, J.

MCFARLAND & BOBBITT for Railroad.

WARE & MARTIN for Mason.

COOPER, J., delivered the opinion of the Court.

Action by Mason against the railroad company for damages in the killing of one horse and injuring two other horses by the negligence of the servants of the defendant as a common carrier, in transporting the horses from Louisville, Kentucky, to Milan, Tennessee. The jury found a verdict in favor of the plaintiff for $175, and the defendant appealed in error.

The plaintiff gave his own deposition and took the deposition of one Ramsey in support of the action. These depositions were taken in Grant county, Kentucky, and are somewhat loose and meagre. On the trial, the plaintiff rested upon his own deposition, and Ramsey's deposition was read by the defendant. No other testimony was introduced. The plaintiff in error now insists that the evidence shows that the plaintiff below and Ramsey were joint owners of the horses for whose loss and injury the suit was brought, and that the verdict is otherwise unsupported by the proof. The testimony shows that two car loads of horses were shipped by the defendant's road at Louisville, Kentucky, to Milan, on the same train, the plaintiff being in charge of one of these cars, and Ramsey of the other. Each car seems to have contained twenty horses. In the loose and inartificial way in which the depositions are taken, both witnesses use language from which it might be inferred that they were joint owners of the stock. The counsel of the plaintiff seems at first to have put that construction upon the language, for he obtained leave of the court to amend and actually amended by making Ramsey a co-plaintiff. This was afterwards corrected by dismissing Ramsey from the case. The point now made was no doubt submitted to the jury upon a charge which has not been excepted to, and they have found that Mason was sole owner of the horses in controversy. The finding is warranted by the testimony. For the plaintiff, in his deposition, treats the horses as belonging to him, and the cross-examination of the railroad company takes the fact for granted in both depositions. The equivocal words are due to the fact that the shipments of each witness were made at the same time, and included the same number of horses.

Both of the witnesses concur in testifying that the horses were injured in the transportation from Louisville to Milan. The plaintiff below deposes that one of them was so badly injured that he refused to receive it from the company. He added, and the statement was read without objection, that he understood the horse was dead. In the absence of any evidence to the contrary, this was sufficient to warrant the jury in finding damages for the loss of one horse and for the injury to the others.

The only point of real difficulty in the case is raised by the charge of the court on the measure of damages. The plaintiff testified that the horse which was killed was a red roan, blaze-faced, one glass eye, about 15 1/2 hands high, with no disease of any kind, sound as a dollar, going all the gaits well, and worth $175, adding that the animal “would have brought that amount in the market.” He is then asked: “What was the market value of the horse at Milan or in the market?” His answer is: “I could have sold the horse when I shipped for $175.” He further testifies that the other horses were damaged $50. The witness Ramsey says that the horse killed was between four and five years old, and a good saddle horse. He is asked if he knew the value of the horse in the markets, and replies in the affirmative. He is also asked: “What was the market value of the horse left at Milan, and what was the amount of damage to the other horses?” His answer is: “I say $125, and they were damaged about $150.””” Both of the witnesses say, in answer to a question directed to the point, that when they speak of the market value, they mean the market in Mississippi.

Upon this testimony if his Honor, the trial Judge, directed the jury, as he probably did, the record not showing the entire charge, that they must find the value of the lost horse, and the damages of the other horses, at Milan at the time when they should have been delivered by the company to the plaintiff, the verdict would have been sustained by the evidence. For the plaintiff's answer above, “I could have sold the horse when I shipped for $175,” might well be considered as giving the market value at Milan, to which his attention was directed by the question.

His Honor, however, upon the supposition that the jury might find that there was no evidence of the value of stock at Milan, added the following charge, which is excepted to: “If you find from the testimony that the stock of plaintiff in controversy was shipped to Milan, Tennessee, and that the plaintiff is entitled to recover damages for injuries done by the defendant to his stock, then the jury may assess the damages from the testimony as to the age and qualities of the horse that is claimed to have died, and from the testimony as to the nature of the injury to the other stock of plaintiff, if any of his other stock were injured, although no witness gave his opinion as to the value of the horse at...