Moran v. Chicago, B. & Q. R. Co.

• Decision Date: 05 November 1923
• Docket Number: No. 14458.,14458.
• Citation: 255 S.W. 331
• Court: Missouri Court of Appeals
• Parties: MORAN et al. v. CHICAGO, B. & Q. R. CO.

255 S.W. 331

MORAN et al. v. CHICAGO, B. & Q. R. CO.

No. 14458.

Kansas City Court of Appeals, Missouri.

November 5, 1923.

Appeal from Circuit Court, Gentry County; John M. Dawson, Judge.

"Not to be officially published."

Action by Ray Moran and Thomas Lawson, copartners doing business under the firm name of Lawson & Moran, against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

H. J. Nelson and J. G. Trimble, both of St. Joseph, D. D. Reeves, of Albany, and J. A. Lydick, of St. Joseph, for appellant.

J. W. McKnight, of Albany, for respondents.

BLAND, J.

This is an action to recover damages for loss sustained by plaintiffs to a carload of animals, consisting of 18 horses and 2 mules, shipped by them from Grant City, Mo., to East St. Louis, Ill. Plaintiffs recovered a verdict and judgment in the sum of $170, and defendant has appealed.

Defendant makes the point that its instruction in the nature of a demurrer to the evidence should have been given. The facts stated in their most favorable light to plaintiffs show that the animals were delivered to defendant railroad company at Grant City on the 28th day of January, 1921, in good condition. Upon arrival of the train at Gentry, Mo., a short distance from Grant City, it was found that a black horse and a mare each had one foot (the mare a rear foot and the horse a front one) protruding under the door of the car in which the animals were shipped; both horses were down. The bull board was in place, but the door was sprung out at the bottom. There was a crack and a knothole in the bottom board of the door a had the appearance of being an old crack or break and had weakened the door. The mare had her leg skinned, appeared to be injured in the back, and required assistance in order to get upon her feet. When she was up she could not walk straight; her hind parts would not follow her front ones. Defendant's conductor testified that while the mare was down he saw a gray horse kick her several times in the side.

The animals were unloaded at Gentry. Lumber was obtained and a partition or stall, consisting of 2×6's and 1×6's securely spiked to the car, was made for the mare. On arrival of the animals at St. Joseph, Mo., the partition was down. The stock was unloaded at St. Joseph to feed, water, and rest. At the place it became necessary to separate the gray horse from the others to prevent it from injuring them by fighting, kicking, and biting. At St. Joseph the animals walked out of the car without assistance, the mare walking as well as the others. When the stock reached Hannibal, Mo., the brown mare was down and the other animals were unloaded and put into another car. When the train reached East St. Louis, Ill., the mare was dead. A post mortem examination showed that death resulted from traumatic pneumonia. The black horse had what is described as "hocks capped," which is a swollen condition of the back part of the lower hind leg; the other animals were not injured. Traumatic pneumonia is induced by external injuries and could be caused by an animal while down being trampled upon or kicked by another horse or horses. The injury could have happened from 12 to 24 hours prior to the appearance of the disease.

No one accompanied the shipment. The evidence as to what occurred en route after the animals left Gentry was testified to by defendant's witnesses. The evidence of defendant shows that the animals were fighting, kicking, and biting while being taken to the stockyards at Grant City for loading, while in the stockyards before loading, and after they were loaded; that there was a gray horse of a very vicious disposition, and it was constantly fighting, biting, and kicking other animals before and after they were loaded into the car and during the entire trip. This vicious animal was seen by the conductor going through the car fighting and kicking at the other animals. The testimony was that this gray horse was fighting the animals as late as the time of their arrival at Hannibal. There was also testimony on the part of defendant that there was no rough or improper handling of the train while the animals were in transit.

We think that the peremptory instruction was properly refused. As to live freight, it is not sufficient for the shipper to show delivery of the animals to the carrier in good condition and their redelivery in a damaged condition; but he must further offer some evidence tending to prove an injury by human agency causing or concurring to cause the loss. When this is done, the burden is cast upon the carrier to show due diligence in the transportation. Hance v. Express Co., 66 Mo. App. 486. We think that plaintiffs established the negligence of the defendant. It was shown that the car door was defective and that the two horses each had a leg protruding out of the door. While It is true that defendant is not liable for injuries caused by the inherent vicious propensities of the animals, yet if the negligence of the defendant and the natural evil propensities of the animals concurred in causing the injury, defendant is liable. It was stated in Galveston, H. & S. A. Ry. Co. v. Jones (Tex. Civ. App.) 123 S. W. 737, 742:

"In order to relieve it [the carrier] from liability, it must appear that the vice or natural propensity of the animal was the sole proximate cause of the loss or injury."

The evidence was sufficient to raise the inference that the horses were down by reason of the negligence of the defendant. Blair Horse & Mule Co. v. Rd. (Mo. App.) 180 S. W. 412; Green v. Rd., 156 Mo. App. 259. 137 S. W. 611. We take judicial notice of the propensity of animals to become restless, kick, and trample upon the animal that is prostrate (Green v. Rd., supra, 156 Mo. App. loc. cit. 263, 137 S. W. 611), and defendant could have anticipated that these natural propensities of the animals might contribute to injure a horse if it became fastened in the defective door.

It is true that the evidence shows that there was one horse in the shipment that was particularly vicious and of a fighting disposition, and defendant insists that it is not liable for the acts of this animal. It is shown that this animal kicked the mare several times while she was down. Even if the defendant would not be liable for the acts of this particularly vicious horse tinder ordinary circumstances, it is liable for the acts of this horse in kicking the mare in the side if the mare was down by the negligence of the defendant. In other words, if the negligence of the defendant concurred with the act of the vicious horse, it would be liable. We apprehend also, although it is not suggested in the brief, that if defendant knew of the vicious conduct of this horse before it injured the mare, and there is sufficient evidence in the record to show that the kicking of the mare was the cause of its death, and failed to take measures to protect the other stock from being injured by this vicious animal, it would be liable for the results of the kicking even if nothing further were shown. And there is evidence that defendant's agent knew of the viciousness of this horse before the animals were loaded at Grant City, and that one of the trainmen saw the horse going through the car kicking and biting at the other animals at a station between Grant City and Gentry.

It is insisted that the court erred in giving plaintiffs' instruction No. 14,...