Owen v. Louisville & N.R. Co.

• Decision Date: 15 November 1888
• Citation: 9 S.W. 698,87 Ky. 626
• Parties: OWEN et al. v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

9 S.W. 698

87 Ky. 626

OWEN et al. v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

November 15, 1888

Appeal from court of common pleas of Jefferson; EMMET FIELD, Judge.

Action by Owen & McKinney against the Louisville & Nashville Railroad Company for injuries to a horse consigned to it for shipment. Judgment of nonsuit, and plaintiffs appeal.

Brown Humphrey & Davie and Luther C. Willis, for appellants.

Barnett Noble & Barnett and Wm. Lindsay, for appellee.

PRYOR J.

The appellants, Owen & McKinney, being the owners of a valuable trotting horse, and desiring to exhibit him at a fair near Chicago, Ill., in the month of September in the year 1886 contracted with the appellee, the Louisville & Nashville Railroad Company, to carry the horse from Shelbyville, Ky where the appellant lived, to the fair-grounds at Chicago. It seems that the horse was seriously injured in taking him from the cars at the place of destination, (the fair-grounds,) and the appellants instituted this action against the railroad company to recover damages for the injury sustained, alleging that it resulted from an insufficient and defective chute or platform upon which the horse was required to walk in leaving the car, and from which he fell to the ground, crippling him as the proof conduces to show, for life. The negligence and improper conduct of the agents of the company is also alleged, in compelling the agent of the appellants to take the horse from the car onto such an unsafe platform, as one of the grounds of recovery. The contract of shipment is filed by the defendant, containing a stipulation by which it is agreed on the part of the shipper, as a condition precedent to his right of recovery for the loss or injury to stock, "he will give notice in writing of his claim thereof to some officer of the party of the first part, or its nearest station agent, before said stock is removed from the place of destination above mentioned, or from place of delivery of the same to the party of the second part, and before such stock is mingled with other stock." As one of the defenses to the action, it was pleaded that this notice in writing had not been given as provided by the contract; that the horse was delivered in good order to the agents of the plaintiffs for unloading; and in taking the horse from the cars the plaintiffs' agents, by their negligence, and by reason of the wildness and unruliness of the horse, suffered him to jerk, rear, and fall, but he was not hurt or otherwise injured thereby. There was no denial of the alleged negligence on the part of plaintiffs' agents in removing the horse from the car, and, if this statement by way of defense is to be regarded as a plea of contributory negligence, the averment in this regard must stand admitted as true. The failure to give the written notice is admitted by the reply, and matters pleaded in avoidance, that were deemed insufficient, or as not having been sustained by the testimony, and a nonsuit ordered. It is argued by counsel for the railroad company that, if the evidence introduced was such as should have been passed on by a jury, still, the answer alleging contributory neglect being undenied, the nonsuit was proper, and we will therefore consider first the sufficiency of this branch of the defense. The alleged injury is said by the plaintiffs to have resulted from the defective platform, that was only 10 feet in width, with no support or railing on either side; and the horse by reason of this defect fell from the platform and was injured. In answer to this complaint is a traverse of the facts alleged, with the averment that the horse fell by reason of the negligence of the agent of the plaintiffs, but was in no manner injured. While the agent may have been negligent, it does not appear nor is it alleged that but for this negligence the horse would not have fallen from the platform; and, all injury of any kind being denied, it seems to us the defense here interposed is not one of contributory negligence, and therefore no reply was required. The appellee maintains that, as gross negligence is alleged against the defendant, no plea of contributory neglect will be allowed; and cases are cited, arising under the statute, authorizing the recovery of punitive damages, where the life of one is lost of destroyed by the willful neglect of another person, corporations or companies, etc. This character or degree of neglect and the recovery under it is the creature of the statute, and not applicable to the...