Payne v. Chicago, Milwaukee & St. Paul Railway Company

• Decision Date: 15 April 1916
• Docket Number: 18637
• Citation: 157 N.W. 613,99 Neb. 699
• Parties: HARRY M. PAYNE, APPELLEE, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

157 N.W. 613

99 Neb. 699

HARRY M. PAYNE, APPELLEE, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, APPELLANT

No. 18637

Supreme Court of Nebraska

April 15, 1916

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Reversed and dismissed.

Judgment of the district court reversed and action dismissed.

Crofoot Scott & Fraser, for appellant.

Earl R Ferguson and Harry W. Shackelford, contra.

FAWCETT, J. SEDGWICK and HAMER, JJ., not sitting.

OPINION

FAWCETT, J.

From a judgment of the district court for Douglas county, in favor of plaintiff, in an action for damages for alleged negligence of defendant in failing to transport, within a reasonable time, a shipment of live stock, defendant appeals.

The case was submitted to the court upon a stipulation of facts as follows:

"It is hereby stipulated by and between the parties hereto that the plaintiff in the above-entitled case delivered the shipment referred to in his petition, consisting of twenty-nine (29) head of cattle and three (3) head of calves, to the defendant company at Luther, Iowa, for transportation to South Omaha, Nebraska, between 5:30 and 6 o'clock P. M., on May 1, 1911, and that the defendant's train conveying the said shipment left Luther at about 6:15, and arrived at Madrid at 6:45 P. M. That the shipment arrived at Council Bluffs, Iowa, at 5:15 P. M., on May 2, 1911, and was delivered at the stock-yards chutes in South Omaha at 9:30 o'clock the same evening.

"That the distance from Luther to South Omaha by way of the lines of the defendant and connecting carriers is one hundred sixty-three and six-tenths (163.6) miles. That the time consumed by the defendant in transporting this shipment is about twenty-seven and one half (27 1/2) hours.

"It is further stipulated that the station of Luther is on a branch line of the defendant railroad, about seven (7) miles distant from Madrid, which is the junction point connecting the said branch with the defendant's main line between Omaha and Chicago. That Perry is the first division station west of Madrid on the defendant's line and is one hundred thirty (130) miles from South Omaha. That the defendant's printed time schedules show that the first regular freight train is due to leave Madrid at 2:10 o'clock A. M., and is due to arrive at Council Bluffs at 5:30 o'clock P. M. of the same day, and to arrive at Omaha at 8 o'clock P. M. on the same day. That the usual time required to deliver shipments from Omaha to the stock-yards chutes in South Omaha is about one and one-half (1 1/2) hours. That the said schedules show that the regular freight trains leaving Omaha east-bound maintain an average speed of eighteen (18) miles per hour between Omaha and Madrid, including time consumed in stops at stations en route, and also between Madrid and Chicago, Illinois. That this shipment moved west from Madrid, Iowa, on the first train down in the said schedule after the time of its arrival at that point, the schedule time for the departure of the train from Madrid being 2:10 o'clock A. M., and the schedule time of arrival at Omaha, Nebraska, being 8 o'clock P. M.

"That no special contract was entered into or any agreement made respecting the particular train said stock should be transported on.

"That both the parties waive a jury and agree to try the said case to the court. That neither party shall be understood to waive objection to any of the foregoing facts, and that the competency, relevancy and materiality of any of the foregoing facts may be called in question by either party at the trial of the said case. That either party may at the trial of the said case offer further evidence bearing upon the question of the defendant's unreasonable delay in transportation of the said shipment, but it is agreed that if the court, after hearing all of the evidence, should find that the defendant failed to transport the said shipment to destination with due diligence and without unreasonable delay, the plaintiff shall have and recover judgment from the defendant in the sum of fifty-six dollars and fifty-nine cents ($ 56.59), with interest thereon at the rate of 7 per cent. per annum from May 2, 1911, to date, and his costs."

From this stipulation it appears that Luther, Iowa was on a branch line of defendant road. The cattle were delivered to defendant between 5:30 and 6 o'clock in the evening. They were at once loaded, and left Luther about 6:15, arriving at Madrid (seven miles distant) on the main line...