Newby v. The Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 23 November 1885
• Citation: 19 Mo.App. 391
• Parties: GEORGE S. NEWBY AND OSCAR SCEARCE, Respondents, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

19 Mo.App. 391

GEORGE S. NEWBY AND OSCAR SCEARCE, Respondents, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 23, 1885

APPEAL from Clinton Circuit Court, HON. GEORGE W. DUNN, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action to recover the value of a steer, which escaped through the end door of a freight car, in which it had been loaded, at Edgerton, in this state, for transportation over defendant's line to Chicago. It was alleged in the petition that: " defendant recklessly and carelessly placed said cattle in a car of defendant, the end door of which was broken, and in an unsafe condition, and unfastened and, in consequence of defendant's agents negligently and wrongfully failing and refusing plaintiffs' agents reasonable and proper time to secure said cattle in said car one of said cattle, of the value of eighty dollars, got out of said end door, being so defective, as aforesaid, and was run over, killed and destroyed by the cars of said defendant and in consequence thereof, was not delivered at said city of Chicago."

The evidence showed that it was shown on the trial that the cattle were shipped under an agreement that a part should be loaded at Edgerton, and that the car should then be taken to Plattsburg, where the remainder of the cattle would be loaded therein, and the usual shipping contract signed. And it was agreed that a shipping contract was executed at Plattsburg in which, among other things, it was provided: " And it is further agreed, that the said party of the second part is to load and unload said stock at his own risk, the said Chicago, Rock Island and Pacific Railway Company furnishing laborers to assist, who are to be subject to the orders of the owner, or his agent, while in that service."

Plaintiffs, themselves, did not load the cattle, but their servant, Henry Hawkins, did. He testified as follows: " I loaded the cattle in controversy for plaintiffs, on the 26th day of August, 1882, at Edgerton. The car in which they were loaded was brought in on the train, and placed at the stock chute, and I loaded the cattle with the assistance of persons who were there. The defendant's agent was not present, and the train men took no part in the loading. After the cattle were loaded, the train was started up before I had time to fasten the end door. I barely had time to fasten the side door. There was no bar at the end door. The car was taken out on the main track to be attached to the remainder of the train which had been left there for the purpose of going on a side track to avoid a passenger train that was then due. I saw the end door before the train started, but had no time to close it. The car was a large stock car, and nearly new. I examined the window, or end door, and saw no evidence that there had ever been a bar across it. This examination was made after the accident. I saw the door open before I loaded the stock, but I had no time to close it. I did not notify the train men that the end door was open, and did not ask them for time to close it. I did not hear the conductor ask if I was ready, nor say to him that I was ready before the train started. I think the conductor was on the opposite side of the car at the time, and that he fastened the door on that side. Before the train started, I heard him say, " All right, go ahead.' When the train pulled out on the main track, the steer in controversy jumped out of the end door, and was killed. The bottom of the door was about four feet from the bottom of the car."

The train men testified they did not know the door was unfastened or open, nor did anyone request time to fasten it. But, on the contrary, when asked if he was ready to move out, the man in charge of the cattle answered in the affirmative.

The court gave the following instructions for plaintiffs:

" 1. It is the duty of defendant to furnish plaintiffs with a car properly constructed, and in safe and proper condition for the shipment of their cattle, and to afford sufficient time for loading the same, and closing and safely securing the doors of the car, and if the jury believe from the evidence that the end door of the car was broken, and in an unsafe condition, or unfastened, and that the defendant's agents failed to properly secure the same, and failed to afford plaintiffs' agent reasonable time so to do, and, in consequence, the steer mentioned escaped from the car, and was run upon and killed by defendant's cars, they will find for the plaintiffs, and assess their damages at the value of the steer."

The following were given for defendant:

" 4. If the jury believe from the evidence that the conductor of the train asked plaintiffs' agent, after the car was loaded, if he was ready, and he answered to the effect that he was, the verdict must be for defendant."

" 5. If the jury believe that the cattle were shipped from Edgerton with the understanding that the car was to be filled up at Plattsburg, and the contract in evidence was to be there signed by plaintiffs, said Newby or his agent, then said contract relates back to, and governs the parties in loading said cattle at Edgerton."

" 8. Plaintiffs cannot recover upon the ground that the end door had no bar across the opening."

And refused the following for defendant:

" 1. The jury must find for the defendant.

2. If the jury find from the evidence that it was agreed by and between plaintiffs and defendant, that plaintiffs should load and unload the cattle in question, or that it was the custom on defendant's road at the time said cattle were loaded into the cars, that the owner should load and unload the live stock at his own risk, the defendant furnishing laborers to assist in so doing, who were, while in such service, subject to the direction and control of the shipper, and that such custom was known to plaintiffs, and that in pursuance of any such agreement or custom, plaintiffs loaded said cattle into said car in evidence, or caused them to be loaded by their agent, and that said agent, knowing that a door in said car was not...