McCampbell, Figg & Burnett v. Louisville & N.R. Co.

• Decision Date: 26 November 1912
• Citation: 150 S.W. 987,150 Ky. 723
• Parties: McCAMPBELL, FIGG & BURNETT v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

150 S.W. 987

150 Ky. 723

McCAMPBELL, FIGG & BURNETT v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

November 26, 1912

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by McCampbell, Figg & Burnett against the Louisville &amp Nashville Railroad Company. From a judgment in their favor plaintiffs appeal. Affirmed.

Thos C. Mapother, of Louisville, for appellants.

Helm & Helm, Benjamin D. Warfield, and C. H. Moorman, all of Louisville, for appellee.

HOBSON C.J.

McCampbell, Figg & Burnett shipped from Louisville, Ky. on July 29, 1911, a car load of 247 lambs to Jersey City, N. J.; the Louisville & Nashville Railroad Company issuing a through bill of lading. The lambs reached Pittsburg in good condition, but when they reached Jersey City 11 were dead, one was crippled, and the remainder had lost weight and were in bad condition, so that they were sold at a loss of $332. The shippers brought this suit against the railroad company to recover damages, and on a hearing of the case before a jury there was a verdict in their favor for the value of the 11 dead lambs and the one crippled lamb, less what the carcasses of these lambs brought in Jersey City. The circuit court entered judgment on the verdict, and the plaintiffs appeal, insisting that they should have recovered for the loss on the remainder of the lambs.

The proof shows that the weather was very hot and that the lambs suffered much from heat. It also shows that there was no delay in their shipment, that they went through on schedule time, and were delivered promptly in Jersey City. The proof for the railroad company is to the effect that the car was properly handled and that there was no negligence on the part of the carriers in handling the shipment. No objection appears to have been made to this evidence in the circuit court but it is insisted here that all the testimony for the railroad company should be disregarded, and that the plaintiffs were entitled to a peremptory instruction, because the proof shows that the car in which the lambs were delivered at Jersey City was P., C., C. & St. L. 658165, while the proof for the defendant all refers to the car as P., C., C. & St. L. 658135, and it is said that the defendant shows the proper handling of one car, when the lambs were shipped in another. But the record shows that the car which the defendant's witnesses refer to contained 247 lambs shipped by McCampbell, Figg & Burnett from Louisville to the same consignee at Jersey City, and we must presume now that the figure "3" was merely a clerical error for the figure "6," because there is no proof that there were two loads of 247 lambs in the train sent by the same shippers to the same consignee in a P., C., C. & St. L. car.

It is also insisted that the court misinstructed the jury. The instruction complained of is as follows: "If the jury believe from the evidence that the defendant company received the stock in the evidence referred to in good condition at Louisville, Ky. for transportation to Jersey...