Owens Bros. v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 05 October 1908
• Citation: 117 N.W. 762,139 Iowa 538
• Parties: OWENS BROTHERS, Appellants, v. CHICAGO, ROCK ISLAND and PACIFIC RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

117 N.W. 762

139 Iowa 538

OWENS BROTHERS, Appellants, v. CHICAGO, ROCK ISLAND and PACIFIC RAILWAY COMPANY, Appellee

Supreme Court of Iowa, Des Moines

October 5, 1908

Appeal from Iowa District Court.--HON O. A. BYINGTON, JUDGE.

ACTION to recover damages on account of delay in the shipment of live stock. At the close of the evidence the court instructed the jury that plaintiffs were not entitled to recover except for the value of one animal alleged to have been injured, and verdict was returned accordingly. From the judgment rendered on said verdict, plaintiffs appeal.-- Reversed.

Reversed.

J. M Dower and Popham & Havner, for appellants.

Carroll Wright, J. L. Parrish, and C. Hedges, for appellee.

OPINION

WEAVER, J.--

Plaintiffs are dealers in thoroughbred cattle at Homestead, Iowa and the defendant is a railway company doing business as a common carrier upon a line of road passing through Homestead to and beyond Newton, Iowa. The plaintiffs allege that a fine stock sale had been advertised to be held at Newton at which they proposed to offer their herd, and, for the purpose of obtaining transportation therefor, they entered into oral negotiation with the defendant, through its agent at Homestead, informing him of their desire to ship said cattle, the purpose of such shipment, and the necessity of its being forwarded promptly and without undue delay, and that, as a result of such negotiation, the defendant, for a specified consideration, orally undertook to carry from Homestead to Newton five car loads of said cattle, and that said shipment should be hauled in a fast train known as "First 97," which would leave Homestead about eleven o'clock a. m. of January 3, 1906, and arrive at Newton about 3 o'clock of the afternoon of the same day. But plaintiffs aver that, although said stock was loaded and ready in time for said train, defendant neglected and refused to transport them on "First 97," but held said loaded cars for a long time at Homestead until the arrival of "Second 97," by which it attempted to haul them to Newton, and, instead of delivering said shipment at said destination within four or five hours, as it should have done, such delivery was not made for a period of about thirty hours, and that by reason of such delay and consequent exposure of said cattle to the weather, and by depriving them of water and feed, they were seriously injured and depreciated in value.

In a second count the petition further charges that one of the animals constituting such shipment was injured by reason of a defect in the car in which it was shipped, and became a total loss to the plaintiffs, and recovery is asked on account thereof. By an amendment to the petition, the defendant is also charged with negligence in transporting and caring for said cattle by reason of which they sustained injury in the sum of $ 1,800. The answer of the defendant denies the plaintiffs' claim, and sets up a counterclaim for an alleged balance of unpaid freight charges.

The plaintiffs' evidence tended to show the substantial truth of the averments of the petition as to the agreement to ship the cattle on the train "First 97," which was due to leave Homestead about eleven o'clock in the forenoon of January 3, 1906. The agent was informed of the purpose for which the shipment was to be made, and the necessity of its prompt and quick transportation in order that the cattle should be in fit condition for the sale at which they were to be offered. The agent professed to communicate with the defendant's managing officers, and informed plaintiffs that the cars would be furnished, and that, if loaded in time, they would be hauled to Newton by the fast freight, known as "First 97." The cars were, in fact, furnished, and the cattle loaded therein before the arrival of said train, but, for reasons not then explained, the trainmen refused, or at least failed, to take up the cars, and they were left standing on a side track until another train, known as "Second 97," arrived and took them on about midnight, or later of that day. By that time it was snowing briskly. The train was delayed, stopping at different points, and did not reach Newton until some time in the afternoon of January 4, 1906. There was evidence, also, from which the jury might find that by reason of the delay on the road, the cold and storm to which the stock was exposed, and their deprivation of food and drink they were damaged in condition, appearance, and market value in a very substantial amount. It was also shown that a door on one of the cars was in a damaged and defective condition, and that, by reason thereof, one of the animals in some manner thrust a leg through an opening in or under the door, receiving injuries necessitating its subsequent destruction.

On part of the defendant the evidence was to the effect that the snowstorm had set in before the train "First 97" reached Homestead; that this train found some trouble on account of impeded track, but reached Grinnell, where by reason of the storm it was set out on a side track, remaining there until the next day and until after "Second 97" had passed through with plaintiffs' stock. While there is testimony that the train had a load near to the hauling capacity of its engine when it reached Homestead, none of it was live stock, but consisted of paper, iron, machinery, automobiles, oil, beer, and general merchandise. Train "Second 97," according to defendant's showing, after taking on plaintiffs' shipment at Homestead, proceeded without very serious difficulty to Brooklyn. At that point, although it was not the end of the division the engineer and fireman refused to go further. The storm was then passed, though the wind was still blowing. The trainmen had been on duty nearly eighteen hours, and, as they refused to proceed further, the train was put away. On the afternoon of January 4th the conductor of "Second 97" took the engine and caboose of that train, and, proceeding to Grinnell, hauled "First 97" to the end of the division at Valley Junction. Meanwhile an engine sent from the west for that purpose took up the cars in question at about nine o'clock in the morning of January 4th, and hauled them to Newton, arriving there at about one o'clock in the afternoon. In short, as to this feature of the defense, it is the contention of the defendant that whatever delay occurred in shipping the cattle was due alone to the act of God, and that no liability exists on its part on account thereof.

It was...