Pennsylvania Co. v. Dickson
| Decision Date | 26 May 1903 |
| Docket Number | 4,405 |
| Parties | PENNSYLVANIA COMPANY v. DICKSON |
| Court | Indiana Appellate Court |
Motion to modify opinion overruled October 13, 1903.
From Morgan Circuit Court; M. H. Parks, Judge.
Action by Katharine Dickson against the Pennsylvania Company. From a judgment for plaintiff, defendant appeals.
Reversed.
S. O Pickens, for appellant.
C. G Renner and J. C. McNutt, for appellee.
Appellee was plaintiff below, and sued appellant to recover damages for the alleged negligent failure to carry and deliver at the Union Stock-Yards, in Chicago, five car loads of cattle in time for a particular market on a specified day.
The complaint was in two paragraphs. The first is based upon a written contract for the shipment of four car loads of cattle from Mooresville, Indiana, and the second is based upon a contract for the shipment of one car load of cattle from Martinsville, Indiana. Both of these contracts are made exhibits. The first may be designated as a "live stock contract" and the second as a "bill of lading." The negligence complained of was the failure to ship and deliver the stock in time for the market of December 28, 1898; the appellant having received the stock on the 27th. The "live stock contract" contains the following stipulations: That "the said shipper has delivered to the said carrier live stock of the kind and number, and consigned and destined by said shipper as follows: Seventy-eight cattle, four cars cattle M. Dickson & Co., Cr. J. C. Bohart Com. Co., Union Stock-Yards Chicago, Illinois, for transportation from Mooresville, Indiana, to destination, if on the said carrier's line of railroad, otherwise to the place where said live stock is to be received by the connecting carriers for transportation to or toward destination; * * * that said shipper, or the consignee, is to pay freight thereon to the said carrier at the rate of eleven cents per 100 pounds, which is the lower published tariff rate based upon the express condition * * * that in the event of any injury, delay, or detention of said live stock, caused by the negligence of said carrier, or its employes, or its connecting carriers, or their employes, or otherwise, the said shipper agrees to accept as full compensation for all loss or damage sustained thereby the amount actually expended by said shipper, in the purchase of food and water for the said stock, while so detained." The bill of lading, which is the exhibit to the second paragraph, shows the receipt of one car load of cattle, "which said company agrees to carry to the said destination, if on its road, otherwise to deliver to another carrier on the route to said destination." Subdivision two of the bill of lading is as follows: It is also provided in subdivision three, that "no carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee."
The record shows that Martinsville and Mooresville are situate on the Indianapolis & Vincennes Railroad, which is operated by appellant, and that it terminates at the Panhandle yards at Indianapolis. It is also shown that the appellant did not own or operate a line of road from Indianapolis to Chicago, and that freight shipped from points on the line of the Indianapolis & Vincennes Railroad was routed over some other line from Indianapolis, and that in this instance the five car loads of cattle were delivered to the Panhandle company's fast train for Chicago at Indianapolis. Each paragraph of the complaint avers that appellant's train was overloaded, which was the cause of delay. It is also shown by express averments that, when the cattle were loaded, appellee knew the train was late. Each paragraph also contained the following allegations: "That it was known and understood by said company [appellant] that said cattle were to be delivered to the consignee aforesaid in the forenoon of the 28th day of December, 1898, so that they could have food and water, and be prepared for the opening of the market at said Union Stock-Yards on said day, at 9 o'clock a. m.; that said company [appellant] well knew the custom of preparing cattle for said market, and the time of the opening thereof, and all things hereinafter alleged concerning the same, and in executing said written contract, and in entering into said writing, contracted with special reference thereto; * * * that said cattle were in good condition, so that had they been transported with reasonable dispatch and ordinary care by said company [appellant], they would have arrived at said Union Stock-Yards in good condition, without loss of weight or decrease of value, in time to be prepared and exposed for sale at the opening of said market on the 28th day of December, 1898; * * * that said company [appellant] carelessly and negligently failed and neglected to take her said cattle from said town of Mooresville at the usual time, and at the time it agreed to, but carelessly and negligently left said cattle on said side-track at Mooresville five hours past the time she was assured her said cattle would be taken; * * * that after said engine and said cars of said defendant were under way from said town of Mooresville with said cattle, it did not, with ordinary care, reasonable dispatch, and fidelity to its duty as a common carrier, transport said live stock of plaintiff, but carelessly and negligently failed to provide sufficient engines to transport said train and said cattle with reasonable dispatch to their destination." The damages to appellee are alleged to have been occasioned in the following manner: By a decline in the market from December 28 to the following day; shrinkage in the cattle, and in additional expense in having to keep them over. A demurrer to each paragraph of the complaint was overruled. Answer in denial, trial by jury, verdict and judgment for appellee. Appellant's motion for a new trial was overruled. Overruling the demurrer to the complaint and the motion for a new trial are assigned as errors.
It is urged that the first paragraph of the complaint is bad because it is averred that the appellant failed to transport the cattle in time for a certain market, when the contract sued on is not a contract to transport them in time for that or any particular market, but only to transport them within a reasonable time, if on appellant's line of road, and, if not, to deliver them to a connecting carrier. The same objection is made to the second paragraph, on the ground that the bill of lading...
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