Northern Pac. Ry. Co. v. Kempton

• Decision Date: 29 May 1905
• Docket Number: 1,072.
• Citation: 138 F. 992
• Parties: NORTHERN PAC. RY. CO. v. KEMPTON.
• Court: U.S. Court of Appeals — Ninth Circuit

138 F. 992

NORTHERN PAC. RY. CO. v. KEMPTON.

No. 1,072.

United States Court of Appeals, Ninth Circuit.

May 29, 1905

This is an action for damages alleged to have been sustained by the plaintiff (defendant in error) in consequence of the negligence and delay of the defendant in transporting 12 car loads of the plaintiff's cattle over its line of railroad from Winnipeg Junction, Minn., to Fallon, Mont. It is alleged that the negligent conduct of the defendant consisted in the failure to provide an independent train, with independent power, for the transportation of the plaintiff's cattle in the negligently slow rate of speed at which the cars containing the cattle were hauled, and the negligent manner of starting and stopping the said cars, by reason whereof many cattle were bruised, crippled, made sick and sore, and otherwise injured, resulting in damages to the plaintiff in the sum of $10,072. The defendant railway company denies any negligence on its part in transporting the cattle, and avers that the plaintiff and his agents overcrowded the cattle in loading them into the cars, and any injury sustained by said cattle was contributed to by the said crowding. It avers that it furnished an independent train, with independent power, as soon as demanded, and alleges, as matter of defense, that the principal delay in hauling the train containing the plaintiff's cattle was caused by the unusually severe snowstorm and blizzard, producing conditions over which the defendant had no control. The defendant further charged that the plaintiff had no right of action upon the contract, as he had not complied with the terms thereof, in that he had not brought the action within 60 days after the alleged damage was said to have occurred, and had not given any written notice of his claim for damages to any officer or agent of the defendant before removing the said stock from the place of destination.

The plaintiff shipped 12 car loads of cattle from Winnipeg Junction, Minn., to Fallon, Mont., over defendant's line of road, under a written contract. The distance from Winnipeg Junction to Fallon is 471 miles. The train hauling the cars containing plaintiff's cattle left Winnipeg Junction May 1, 1899, at 5 p.m. It arrived at Fallon on May 4, 1899, at 3 p.m. The plaintiff testified that the usual running time for stock trains was from 15 to 25 miles an hour. At the rate of 15 miles an hour, the train should have made the distance in 36 2/5 hours, including 5 consecutive hours required by section 4386 of the Revised Statutes (U.S. Comp. St. 1901, p 2995) for rest, water, and feeding, when the transportation of cattle is for a longer period than 28 consecutive hours The time actually consumed in transporting the cattle to their destination was 70 hours. The 12 cars containing the cattle were attached to a local freight train from Winnipeg Junction to Mandan, a distance of 226 miles, at which point the cattle were unloaded by the plaintiff, cared for, and reloaded into the cars. The plaintiff there demanded a special, independent locomotive for the hauling of the cars which was furnished, and the train proceeded independently from that point to Richardton, a distance of 86 miles, where a delay of some 11 or 12 hours occurred by reason of a severe snowstorm, and an accident to the switch which prevented the train from leaving a side track. From this point to the point of destination, 159 miles, the train appears to have proceeded without difficulty, ant no complaint is made as to this portion of the service. The evidence tended to show delays at several points between Fargo and Richardton, for which the defendant company was responsible. The evidence also tended to show that plaintiff shipped 582 head of cattle from Winnipeg Junction, all in good condition. When the train arrived at Mandan, the stock was in bad condition. Two had legs broken, and 9 were dragged out of the cars because they could not be got up, on account of bruises they had received on the way, from being thrown down and crippled. The next morning at Mandan 9 of the cattle were dead, and 3 others were dying. Twelve were left at Mandan. The cattle were in very bad condition on arrival at Fallon. Forty-five more were dead, 7 more died on being taken from the cars, and 54 were left at Fallon because they could not walk. Within 10 days 122 were dead, others crippled, and still could not walk. Within 10 days 122 were dead, others crippled, and still others were more or less injured.

The case was tried with a jury, resulting in a verdict for the plaintiff in the sum of $3,000, and judgment was entered thereupon. To reverse this judgment a writ of error has been sued out to this court.

Wm. Wallace, Jr., and Charles Donnelly, for plaintiff in error.

Sidney Sanner and T. J. Walsh, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge, after making the foregoing statement of facts, .

The defendant in error, as a witness in his own behalf, was asked by his counsel the following question:

'How, in the ordinary shipment of live stock, is it shipped and transported by railroads in this section generally-- with single trains, or jointly and promiscuously with other freight?'

An objection to this question was overruled by the court, and the witness answered:

'Ten cars and upwards constitute a stock train. It is customary, when asked, to give power for ten cars or upwards to the capacity of the power, and transport it as a separate train, when demanded.'

It is objected to this evidence that the shipment was made under a special contract, which was complete in itself, and was a contract simply to transport stock; that this evidence tended to show a custom making another and a different contract for the transportation of the stock by an independent train, and it is contended that this could not be done. The objection cannot be sustained. The evidence did not tend to establish a new contract, or to change or modify the terms of the written contract. The contract was silent as to time and manner of performance, and the evidence was properly introduced to inform the court and jury as to the custom prevailing with respect to the character of transportation the parties had in view when they made the contract. The contract did not say whether the cars in which the cattle were loaded were to be attached to a through freight train or to a way freight train, or whether the cars were to be hauled as an independent train. Which of these methods was the carrier to furnish? The presumption was that the parties to the contract understood that the cattle were to be transported in the way that similar freight in similar quantities was being transported, and the evidence objected to, as well as other evidence not objected to, relating to the method of transporation, was introduced for the purpose of establishing that fact, and was admissible for that purpose. Robinson v. United States, 13 Wall. 363, 20 L.Ed. 653. A custom or usage known to the shipper, as to the manner or method of transportation, will be binding as a part of the contract when not contrary to its terms. 6 Cyc. 428.

It was also objected that the court instructed the jury that it was entitled to take into consideration the evidence relating to the question whether cattle being transported in a number greater than ten car loads were or were not hauled by regular freight trains, or trains gotten up specially for the purpose of transporting such cattle. It is contended, first, that the plaintiff was only entitled to transportation as an independent train when demanded, and it is claimed that the testimony shows that when such transportation was demanded it was furnished; and, second, that the evidence was insufficient to establish a custom that 10 cars an upwards constituted a stock train. It is true, the plaintiff testified that it was 'customary, when asked, to give power for ten cars or upwards to the capacity of the power, and transport it as a separate train, when demanded. ' This answer, standing alone, is not very clear. But he made his meaning clear in a subsequent statement. He said: 'We always expect it when shipping either in or out. We collect a train load, and were entitled to a stock train. If we had ten cars or more, we generally get separate power for them. ' What the witness evidently meant was that, when transportation was asked for 10 car loads or upwards, it was customary to transport the shipment as s separate train. James E. Farnham, who had been in the cattle business in Montana since 1883, and for the last 12 years had shipped most of the cattle for his company, testified: 'If we have a train load, we have power of our own. A train load is from ten cars up. ' This evidence was sufficient to justify the instructions given by the court. It also disposes of the objection that the court refused to instruct the jury that no sufficient proof had been given to establish a custom under which the plaintiff was entitled to have the cattle transported as an independent train, with independent power; and it disposes of the further objection that the court refused to instruct the jury that the plaintiff, having failed to demand an independent train with independent power from Fargo to Mandan, had waived his right thereto.

The plaintiff testified that the train stopped at Richardton; he did not know why. He asked the conductor: 'Why don't you get over the road?' He said: 'I can't get anywhere with this dummy....