Ormsby v. Union Pac. R. Co.

• Decision Date: 17 November 1880
• Citation: 4 F. 706
• Parties: ORMSBY v. U.P.R. CO.
• Court: U.S. District Court — District of Colorado

4 F. 706

ORMSBY v. U.P.R. CO.

United States Circuit Court, D. Colorado.

November 17, 1880

C. W Wright, for plaintiff.

J. P Usher and H. M. & W. Teller, for defendant.

McCRARY C.J.

(charging jury.) This is a suit in which the plaintiff claims to recover damages from the defendant, the Union Pacific Railway Company, on the ground of negligence in the transportation of a car load of horses.

The plaintiff, in order to recover, must establish two propositions of fact, and of those propositions you are the judges: First, that the railroad company was negligent in the matter of delay in transporting plaintiff's horses second, that the result of that negligence was the damage and injury complained of. I will speak to you first only with regard to the plaintiff's case. Presently I will call your attention to the several defences that have been set up by the defendant. You will then in the first place consider whether the plaintiff has made out, prima facie, a case upon which he is entitled to recover if the defence is not established-- whether the railroad company was guilty of negligence in the matter of delay; because there is no allegation that there was any negligence except in the delay of 24 hours at the station of Brookville, between this and Kansas City. It is the duty of a railroad company, engaged as a common carrier, when they receive freight to be transported, to carry it without unnecessary delay. A delay of 24 hours at a station on the way is an unnecessary delay unless it is explained and excused by something which the law recognizes as sufficient. The excuse that the company needed its rolling stock for the purpose of carrying passengers is not a sufficient excuse. The duty of the company is to be prepared to execute its contracts, both to carry passengers and to carry freight; it cannot excuse itself for a failure to do the one upon the ground that it was bound to do the other, and that it was not able to do both. Therefore, if there was nothing in the case except the fact of a delay of 24 hours at this station, and if you should find that that delay was the cause of the injury of which the plaintiff complains, he would be entitled to recover. But it is incumbent upon the plaintiff to show by the preponderance of testimony that the damage to his stock was caused by that delay of 24 hours, and that is the next question for your consideration. You are to consider that question carefully upon the testimony that has been submitted to you, and it is for you to decide whether, in the case of the horses that died, their death was caused by this delay; and, as to the others, whether their sickness and the damage to them was the result of the same cause. In considering this question you will look into the evidence which has been offered before you, tending to show that the injury might have resulted from some other cause; and if you find that it did result from other cause, or, in other words, if you do not find the evidence sufficient to show that it resulted from this delay, you cannot find a verdict for the plaintiff; as, for example, you must consider the condition of the stock when it was shipped at Kansas City, and its condition when it was shipped in Kentucky. If you find that there was anything the matter with the stock, or any of it, before it started from Louisville, that is a fact to be considered, and upon the testimony it is for you to say whether this delay of 24 hours resulted in the death of the two horses, and in the sickness and injury of the others complained of. If you find that the delay was the cause of the injury to the stock, then your verdict will be for the plaintiff, unless you find for the defendant on some of the matters that are alleged by way of defence.

In considering, however, the first question, (whether the damage resulted from this delay,) you are to consider not only the condition of the stock when it was shipped at Louisville, and when it was reshipped at Kansas City, but you are to consider the manner of the shipment that has been testified to before you-- the fact that the horses were put in stalls, that they were crosswise of the car, and that there were 12 of them on the car, and you are to judge whether that manner of shipment would or would not have resulted in this sickness and death and injury of the horses, independently of the delay of 24 hours at Brookville. If you conclude that under all the circumstances the horses would have come through safely, and none of them died, and none of them suffered injury but for that delay, then the plaintiff has made out a prima facie case. But if you conclude that even if the horses had not been stopped at Brookville these two would have died, and the others would have been injured and sick, just as they were, then the plaintiff has not made a case, and that is the end of it. But, if upon these questions you find for the plaintiff, you will proceed to consider some of the matters alleged by way of defence; and the only matter that I think I need call your attention to as requiring your consideration, is the allegation of negligence on the part of the plaintiff himself. I say to you, as matter of law, that if the plaintiff was negligent, and if his negligence materially contributed to the injury which he has sustained, then he cannot recover. And in considering this question you will look into the evidence upon the points that I have already called your attention to. As, for example, you will inquire whether it was negligence in him to ship horses in the manner in which he shipped; whether he acted with reasonable and ordinary prudence in that respect, and, if he did not, whether that negligence materially contributed to...