Missouri Pacific Railway Company v. Vandeventer
| Decision Date | 20 March 1889 |
| Parties | THE MISSOURI PACIFIC RAILWAY COMPANY, PLAINTIFF IN ERROR, v. M. H. VANDEVENTER ET AL., DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county. Tried below before BROADY, J.
AFFIRMED.
B. P Waggener, and Isham Reavis, for plaintiff in error, cited Doom v. Walker, 15 Neb. 339; 19 Central Law Journal 164; Wabash, St. Louis, & Pacific R. R. Co. v. Black, 11 Bradw. 465; Dawson v. St. Louis, Kansas City & Northern R. R. Co., 76 Mo. 514; Moore v. Great Northern Ry. Co., 10 L. R. (Ir.) 95.
Frank Martin, for defendant in error, cited: Sec. 4, art. 11, Const. of Neb. A. & N. R. R. Co. v. Washburn, 5 Neb. 117.
This action was brought in the district court of Richardson county by the defendants in error against the plaintiff in error, for $ 256.50, the alleged value of fifteen hogs, being part of a car load of hogs shipped by the defendants in error over the railroad of plaintiff in error from Stella, Nebraska, to Kansas City, and which were claimed to have been lost by reason of the negligence of the railroad company.
The defendant in said action, among other defenses, alleged, in its answer, that no notice was given defendant of such pretended loss of hogs before removing the remainder from the car at Kansas City, as by the terms of the shipping contract plaintiffs were bound to do as a condition precedent to a right to demand of defendant reparation for any loss which might occur in the shipment of said stock.
The cause was tried to a jury, which returned a verdict for the plaintiffs with damages of $ 334.55.
The following interrogatories were submitted by the court to the jury for special findings of fact:
1. Was the company or its agents guilty of any negligence in the transportation of the hogs? and if the jury answer Yes, they will say in what particular the company was negligent.
To which the jury answered, Yes; in the delay of the car containing the hogs, from Hiawatha to Atchison, Kansas, of twenty-four hours.
2. Was notice in writing of the loss of fifteen hogs given the defendant before the stock was mingled with others, or removed from the place of destination?
To which they answered, We don't know.
The defendant's motion for a new trial having been overruled, and judgment having been entered on the verdict, the cause is brought to this court on error. The errors assigned are numerous; but such only as are discussed in the brief of counsel will be considered. These arise chiefly upon the construction and legal effect to be given to certain clauses in the contract of shipment, and the effect to be given to the evidence introduced by the defendant in the court below as to the number of hogs shipped, and the number delivered by the railroad company at the place of delivery.
Morgan H. Vandeventer, one of the plaintiffs, testified in their behalf that he shipped a car of hogs on May 29, 1883, from Stella, Nebraska, to Kansas City, Missouri, consigned to A. J. Gillispie & Co.; that there were sixty-nine hogs shipped, and that when the car reached the Kansas City stock yards there were but fifty-four; that the average weight was 261 pounds, and a fraction over; that the hogs were worth in the market $ 6.80 per 100.
On cross examination by counsel for defendant below, the witness stated that he received most of the hogs the day before he shipped them; that he had asked for a car, and when it was sent, found it was a large thirty-three-foot car, and that his stock would not all be in, in time to ship that day; that there were a few hogs he expected that did not come, and finding that he had engaged a large car, he contracted for more hogs to come in the next morning; that he had on his books the names of parties who brought in hogs each day, the number, and price paid, and that fifty-three hogs came in on the first day; that he separated the hogs in the evening, and there were no other hogs in the yard at the time; that there were two yards in the north side of the shute, and he put a part in the north side, a part in the southwest corner in the south side, and cut out two little ones that he got in, by themselves; * * * that the next morning he let them all by together, and found he had fifty-three in the yard; that he received there between that and loading time, (referring to his book,) five from Witters, one from Jones, five from McKinnegar, and five from Dresser, making sixteen that morning, and making sixty-nine hogs in all.
In answer to the question, When did you find out there was a shortage in your hogs? the witness answered: At that time they (the plaintiffs) were operating mostly on the B. & M., (Burlington & Missouri River R. R.,) and had their head-quarters with Mr. Lincoln, at Salem. All returns were made to Mr. Lincoln at that time, and it was two or three days before he was down at Salem, and when he went there Mr. Lincoln showed him the bill. It was two or three days after the shipment.
He further testified on cross-examination:
Q. What do you know about the reception of the hogs at Kansas City? who received them?
A. A. J. Gillispie is the man we consigned them to; he received them.
Q. He is a commission merchant?
A. Yes.
Q. You consigned the hogs to him?
A. Yes.
Q. Did he make any report to you?
A. Why, he was not aware, until we got the sale bill and notified him, that there was a shortage in the hogs.
Q. What sale bill do you mean?
A. The bill we received from him for the sale of the hogs in the yard.
Q. He could have got no information from the contract as to the number--that was "one car load of hogs?"
A. Yes, one car load; the agent did not count the hogs, and did not give it in the bill.
Q. What did you say?
A. I say at that time the Missouri Pacific agent did not count the hogs. He told me he was not required to do so; for that reason there was no number stated in the bill--just one car of stock.
Q. Then Mr. Gillispie received his information from you?
A. Yes; when we heard from him and found there was a shortage.
Q. How long after you received notice from your consignee did you give notice to the railroad company that some hogs were missing?
A. It was not a great while. It might have been a week--from three or four days to a week.
John H. Myers, witness for the defendant below, testified: That in 1883 he was engaged in running a freight train as conductor, on the night of May 30, 1883, on the Missouri Pacific railroad, between Kansas City and Atchison; that he took possession of the train coming from Stella, Richardson county, Nebraska; that he recognized the number of the car in which plaintiff's hogs were shipped, as one of the cars of that train; that he remembered the circumstance from the fact that when there is a shortage they always send back to the conductor for examination; when anything is lost in transit they send to the conductor, and ask for a statement of the car and its contents and its condition; that he was called on for a statement of the facts in regard to this car, and from that fact he remembered the circumstances. Witness further described the different manner of sealing the cars; that it was the duty of the freight-train conductor, upon receiving a freight train, to go and look at the cars and see that they were properly sealed, describing the manner of doing it, and stated that was done in the case of this car; that the doors on both sides were sealed, and the seals intact; that he arrived in Kansas City with the train at about three o'clock A. M., being one hour late, and turned the train over to the yardmaster with all the seals intact.
Frederick H. Mickelwait, witness for defendant below, testified: That on or about May 29, 1883, he was freight conductor on the Missouri Pacific railroad line between Louisville, Nebraska, and Hiawatha, Kansas; that he conducted the train having car 4587, containing the hogs in question; that he received the car at Stella, and delivered it at Hiawatha; that on receiving it he made an examination of the seals and found them and that they remained untampered with until he delivered them to the next conductor, at Hiawatha, at about 2:45.
On the trial, the plaintiffs introduced in evidence the following contract:
No. of Cars.
Initials.
4587
Mo. P.
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