Moore v. Chicago, R.I. & P. Ry. Co.

• Citation: 131 N.W. 30,151 Iowa 353
• Parties: A. A. MOORE, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Decision Date: 12 May 1911
• Court: United States State Supreme Court of Iowa

131 N.W. 30

151 Iowa 353

A. A. MOORE, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 12, 1911

Appeal from Franklin District Court.--HON. R. M. WRIGHT, Judge.

ACTION to recover damages for the alleged loss of plaintiff's sheep while in the possession of the defendant as a common carrier. Verdict and judgment for plaintiff and defendant appeals. Modified and affirmed.

Affirmed.

Carroll Wright, J. L. Parrish, J. H. Johnson and C. F. Johnson, for appellant.

E. P Andrews, for appellee.

OPINION

WEAVER, J.

On September 12, 1908, plaintiff purchased three hundred and seven sheep from Hill & Son, a firm of dealers or commission men at South Omaha, Neb., for shipment to his farm or place of business at Elkton, S.D. When the purchase was made the sheep were taken from the pens of the seller and turned over to the stockyards company, through which such shipments are made from South Omaha, the consignment being made by Hill & Son, to be shipped over the defendant road to Elkton. The delivery to the stockyards company was made about 4 o'clock p. m. of September 12. They were not loaded upon the car until 10:40 o'clock a. m. of September 14 having meanwhile been "dipped" in obedience to some regulation imposed by federal law upon such shipments. The car was hauled from Omaha east to Valley Junction, Iowa; thence north to Sibley, Iowa where the sheep were transferred to another car, which was hauled westward to Elkton, S. D., arriving there at 5:50 o'clock p. m. of September 17, 1908. Many of the sheep died en route, and but eighty-five were delivered alive to plaintiff. Alleging facts as aforesaid, the plaintiff sues to recover damages. The defendant's answer is in substance a general denial of all the allegations of the petition. The plaintiff's evidence was to the effect that the sheep, if safely delivered at Elkton, would have been worth $ 3.50 per head at that place. The verdict in his favor was for $ 256.65.

I. While many exceptions are presented and argued, the one most prominently asserted goes to the sufficiency of the evidence to sustain the verdict, and to that we give first attention. Plaintiff's testimony tended to show a delivery of the sheep in good condition. He conceded, as a witness, that they were thin in flesh, having been recently separated from their lambs, but says "they were a good, ordinary, healthy bunch of ewes." In this he is corroborated by other witness. Assuming, therefore, that the jury would be justified in believing this testimony, the burden was upon the defendant as a common carrier to show by a preponderance of the evidence that its failure to deliver the sheep safely at Elkton was due to some inevitable accident, or disease, weakness, or other defect inhering or existing in them, and not chargeable to any want of due care on its part. McCoy v. Railroad Co., 44 Iowa 424; Kinnick v. Railroad Co., 69 Iowa 665; Swiney v. Express Co., 144 Iowa 342, 115 N.W. 212; Railroad Co. v. Williams, 61 Neb. 608 (85 N.W. 832, 55 L. R. A. 289); Railroad Co. v. Fox, 113 Ill.App. 180; Railroad Co. v. Woodward, 164 Ind. 360 (72 N.E. 558, 73 N.E. 810); Cooper v. Railroad Co., 110 Ga. 659 (36 S.E. 240); Express v. Ashford, 126 Ala. 591 (28 So. 732).

The question before us on this branch of the case is therefore whether the defense upon which appellant relies has been so clearly and satisfactorily established as to leave no room for a different conclusion upon the part of intelligent, fair-minded jurors. Such is not our conclusion from the record. It is true that plaintiff's claim that the sheep were in reasonably good condition when delivered is vigorously contested by the defendant, and it offers a strong array of evidence tending to show that the animals were the culled remnant of a larger flock from which the more valuable portion had been before selected and sold; that from four to six died in the yard before the car was loaded; that on arrival at Valley Junction more were found dead; that a disease of some kind seemed to develop among them; that others were found dead on arrival at Sibley, and still others died between Sibley and Elkton. It would appear from the record that this showing did convince the jury that the loss of a portion of the sheep was chargeable to causes for which a carrier is not held responsible, for the testimony is without substantial dispute that had the sheep been delivered at Elkton in good order, they would have been worth $ 3.50 per head. According to his showing, plaintiff lost two hundred and twenty-two sheep, and defendant's showing makes the number two hundred and sixteen, but the verdict returned of $ 256.65 indicates that the jury found the defendant's liability did not extend to the entire loss.

As to the circumstances attending the transportation and care of the shipment, it is shown that the train in which the sheep were hauled to Valley Junction, where they were to be unloaded, fed, and watered, arrived there about 7 o'clock p. m. of September 14, but they were permitted to remain in the car all night. The sheep were all in one double-decked car, and the weather quite warm. When unloaded in the morning, twenty were found dead, and others showed signs of weakness. They remained in the yard until evening, when they were reloaded, and at 4:10 o'clock a. m. next day were started on the journey to Sibley, the next feeding point, where they arrived at 5:30 o'clock p. m. While in the yard at Valley Junction, several witnesses say the sheep, or many of them, appeared to be suffering from dysentery or other disease of the bowels, and several died there. At Sibley many others were found dead. The remnant was unloaded, fed, and transferred to another car. The trip thence to Elkton was accomplished in about four hours. It is the claim of plaintiff that the defendant was negligent in keeping the crowded car, without unloading, on its tracks at Valley Junction an unreasonable length of time, and that the jury may well have believed that the disease, if any, of which the sheep died was developed by this treatment, or if the sheep were in any manner affected by the disease when shipped that such treatment operated to aggravate its effect, and the mortality resulting therefrom. We are unable to say that this is not an allowable inference from the facts shown.

If the car was overloaded or overcrowded, and plaintiff be held to have no cause of action on that account, by reason of contributory negligence in respect thereto, it would not relieve the defendant from liability for its negligence, if any, in keeping the car, without unloading, an unreasonable length of time at the feeding station. Other circumstances are relied upon by plaintiff in rebuttal of the claim that the defense has been established as a matter of law, but we will not prolong the opinion to discuss them in detail. It is enough to say that, in view of the entire case as disclosed by the record, the trial court did not err in denying the motion for a directed verdict.

II....