Mosteller v. Iowa Cent. Ry. Co.
| Decision Date | 18 December 1911 |
| Parties | L. F. MOSTELLER v. IOWA CENTRAL RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Hancock District Court.--HON. C. H. KELLY, Judge.
ACTION for damages to horses shipped over the defendants line of railway resulted in judgment as prayed. The defendant appeals.
Reversed.
Geo. W Seevers, W. H. Bremner and J. E. Wichman, for appellant.
C. R Wood and Senneff & Bliss, for appellee.
The plaintiff loaded a car with household goods, machinery, a coop of chickens, and eight horses at Hoopeston, Ill., and billed them over the Lake Erie & Western Railroad Company's line to Peoria, Ill., and from there to Corwith, Iowa over the defendant's line. The horses are alleged in the petition to have been injured to the extent of from $ 50 to $ 150 each by delays in the course of transportation over defendant's road, hard handling of the car, refusal to unload, or to afford facilities to feed and water. Chauncy Moore accompanied the stock by virtue of the shipping contract, which provided: That the said shipper is at his own sole risk and expense to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto; except in the actual transportation of the same.
The evidence in plaintiff's behalf tended to show that the horses were damaged by the rough handling of the car, failure to properly care for them en route in the matter of feeding and watering and unloading, and that this was due to the refusal of the defendant's employees to furnish proper facilities and opportunity to feed, water, and unload; and there was evidence in behalf of defendant to the contrary. The only exceptions argued are to three of the instructions. hose to the fifth and tenth of these, with respect to limiting the amount of recovery for injury to each horse to that claimed, will be obviated on another trial, which the exception to the ninth instruction will render necessary. Therein the court directed the jury that: "If you find, from the weight or preponderance of the evidence introduced upon the trial that, at the time said horses were delivered to the Iowa Central Railway Company at Peoria, Ill., said horses were in good condition, and you further find, from the weight or preponderance of the evidence introduced upon the trial, at the time they reached Corwith, Iowa they were in a damaged condition, then it is incumbent upon the defendant to prove that such damaged condition was not in fact caused by the defendant."
The evidence was conclusive that the horses were in a damaged condition when delivered at Corwith, and the jury was told in the eighth instruction that, in order to recover, it must appear that this was not the result of any negligence on the part of those accompanying the stock. There was no instruction to the effect that the burden of proof was on plaintiff to show that injuries due to any omission in the matter of feeding or watering, loading or unloading, were because of negligence of defendant, and the purport of the instruction quoted, in the light of the evidence, was directly to the contrary. But for the circumstance that Moore and Blakely accompanied the car, the instruction quoted, in so far as it indicated that from delivery by the shipper in good condition and delivery by the carrier at the destination in bad condition negligence of the latter was to be inferred, and, unless met, would justify recovery by the shipper, finds support in Swiney v. Express Co., 144 Iowa 342, 115 N.W. 212.
This is on the theory that, as the stock, having been delivered in good condition, is presumed so to continue until the contrary appears, Powers v. Railway, 130 Iowa 615, if in bad condition upon reaching its destination, this, as it has been in the exclusive control of the carrier, is presumed to have resulted from some negligence on its part. In other words, from a showing of having been delivered to the carrier in good condition and received by the shipper at its destination in bad condition, the inference arises that the company has been negligent in the performance of its duties as a common carrier in the transportation of the stock.
But where the owner, or someone acting for him, accompanies the stock, and, in consideration of being carried, undertakes to load, unload, feed, and water the stock, such an inference is not tenable, for the injury as well may have resulted from the carelessness of the owner or his agent, as from the negligence of the carrier's employees. For this reason the courts quite generally require that the shipper who accompanies his live stock himself, or has his employees do so, prove affirmatively that injury thereto during transportation was not consequent of...
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