Nigh v. Chicago, Rock Island & Pacific Ry. Co.
| Decision Date | 09 November 1925 |
| Citation | 276 S.W. 1038,220 Mo.App. 766 |
| Parties | HOBART NIGH, RESPONDENT, v. CHICAGO, ROCK ISLAND & PACIFIC RY. CO., APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Mercer County.--Hon. L. B. Woods Judge.
AFFIRMED. (conditionally).
Platt Hubbell and George H. Hubbell for respondent.
Luther Burns, Henry S. Conrad, L. E. Durham and Hale Houts for appellant.
This is an action in damages to recover loss on a shipment of forty head of cattle shipped over defendant's railroad from Spickard in Grundy County, Missouri, to the stockyards at Kansas City, Mo.
Defendant is a common carrier engaged, in part, in the operation of a line of railroad between the two points named, and doing a general freight and passenger business. Plaintiff is a farmer, stock raiser and feeder, living about five miles northwest of Spickard.
The record discloses that for some months prior to the date of shipment, plaintiff had kept and fed the cattle in question in a lot of some nine or ten acres on his farm; that they ran to salt and water at all times; that they were three-year-old steers and had been corn fed since the previous December, or longer. On the day of the shipment the cattle were driven from the farm to defendant's stock pens at Spickard, a distance of about five miles, starting about 4 a. m. and arriving about four hours later. The stock had spent the previous night in the feed lot at plaintiff's farm and were fed before starting. On the way to Spickard, some of the steers drank from water in a grader's ditch by the side of the road. There appears some conflict in the evidence as to whether this ditch was running or stagnant water, but the testimony shows that not all of the steers drank from this water and that those which did drink did not partake excessively. They were not driven to the water tank in the feed lot before starting, but the testimony is that the water in the feed lot was accessible to them at all times. There is some testimony to the effect that on arriving at Spickard and being placed in the pens that one and perhaps two of the steers was panting, but this symptom disappeared before they were loaded in the cars for shipping.
It is shown the day was hot and sultry; that it was quite warm even in the early morning, and that the heat increased as the day wore on and even at night, there was no breeze stirring.
Plaintiff asked the station agent of defendant company if cars for his shipment had arrived and was told they had come and that one of them was "spotted" at the loading chute. Plaintiff began loading the steers at about 11:30 A. M. Two cars were used for the shipment and twenty-three head were placed in each car, a neighbor of plaintiff having shipped six head of cattle with plaintiff's, but these are not involved in this action. The cars containing the shipment were picked up by one of defendant's trains and arrived at the stockyards in Kansas City at about 4 o'clock the next morning, crossing the Kansas-Missouri State line before reaching the unloading docks in Missouri.
The train reached Trenton about one P. M. and the shipment was held there a period of five hours, when the train resumed its journey, stopping at various points on the way to pick up other cars. It is undisputed that four of the steers in question died on the way and three more died in the yards at Kansas City and that the remaining thirty-one head were not in a salable condition to be offered at the day's market on May 24th, but were cared for by plaintiff and the commission men to whom they were consigned and were not sold until about two P. M. on May 26th. There is evidence that between the day of arrival and the day of sale there was a decline in the market price of about 75 cents per hundred weight.
The petition alleges that the cattle became overheated and as a result seven died, one fell and became crippled and one sick and that the remaining thirty-one were in an unsalable condition on arrival. Specific negligence was charged in several respects but only two of these charges were submitted to the jury in plaintiff's instructions, to-wit: (1) that the cars furnished for the shipment were unsuitable in that they were solidly boarded from the roof down to about midway to the floor, instead of being constructed with slats over the entire space; (2) that while the shipment was standing in the yards at Trenton, a period of approximately five hours it was negligently surrounded with other trains of cars, thus excluding the air; that while said cattle were thus confined in said cars which were negligently covered with boards, as aforesaid, excluding the air, shutting out ventilation, suffocating and overheating said cattle, plaintiff requested defendant's employees to place the cattle on a side track where they would not be surrounded by cars and trains, and where they would receive some air, and that defendant's employees negligently failed to comply with said request.
Damages were asked for the value of the dead steers, the depreciation in value of the sick and crippled ones, and for extra shrinkage and depreciation in the market price of the thirty-one head which were held for the market and sold on the 26th of May, the total sum asked on account of these matters being $ 882.24. The petition also alleged damage in the sum of $ 200 on account of extra feed and care, but as the testimony showed no charge was made to plaintiff for this service, this item of damage was abandoned.
Defendant answered, denied the allegations of negligence and charged that any injury or damage sustained was caused by the extreme heat of the day upon which the shipment was made, an act of God, and by the negligence of plaintiff in driving the cattle from his farm to the railroad and making the shipment on that day; and that the shipment was interstate because moved across the Kansas-Missouri State line. The answer also included a general denial, after admitting defendant's corporate status and that the shipment was made on the day alleged. The reply was a general denial.
Upon the pleadings thus made the cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the amount asked, to-wit, $ 882.24.
At the close of plaintiff's evidence, defendant asked and the court refused a peremptory instruction in its behalf. Motions for a new trial and in arrest of judgment were ineffectual and defendant appeals.
The first assignment of error is directed against plaintiff's instruction No. 1, in that it submitted to the jury the question of the alleged negligence of defendant in surrounding plaintiff's cattle, while in the Trenton yards, with other trains of cars, because there was no evidence of negligence in this regard. In support of this position, it is argued that as specific negligence was charged and the shipment was in interstate commerce and governed by the Federal rules, it was necessary for plaintiff to show some negligence on the part of defendant in surrounding the cars containing plaintiff's cattle with other trains of cars, in order to make that question one for the consideration of the jury.
There seems to be no attempt on the part of plaintiff to refute this well-established rule, but he is content with saying there was sufficient evidence of such negligence adduced to support the instruction in this respect.
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