Peterson v. Chicago

• Decision Date: 21 February 1905
• Citation: 19 S.D. 122,102 N.W. 595
• Court: South Dakota Supreme Court
• Parties: G. R. PETERSON et al., dba Peterson Bros., Plaintiffs and respondents, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and appellant.

19 S.D. 122

102 N.W. 595

M. & St. P. Ry. Co.,(1905)

G. R. PETERSON et al., dba Peterson Bros., Plaintiffs and respondents,

v.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge Reversed Porter & King, H. H. Field Attorneys for appellant. Winsor & McNaughton Attorneys for respondents. Opinion filed February 21, 1905

HANEY, J.

On June 24, 1901, the plaintiffs delivered to the defendant a car load of live hogs for shipment from defendant’s station at Renner, S. Dak., to its station at Sioux City, Iowa. The hogs were loaded at 8 o’clock in the evening. The car in which they were carried reached Sioux City at 6:30 the following morning, was turned over to the Union Terminal Company, which pulled it into the stock yards at 8:16, and when unloaded about 20 minutes later 19 of the hogs were dead. To recover compensation for the loss thus occasioned this action was instituted, its trial resulting in a verdict in favor of the plaintiffs. Judgment having been entered and a new trial refused, the defendant appealed.

It is alleged in the complaint

“that the defendant was negligent in removing said hogs from Renner in not commencing the transportation of said hogs for several hours after the same had been loaded and delivered to said defendant at about 8 o’clock p. m., of said 24th day of June, 1901, and that defendant was further negligent in not watering down and cooling said hogs while transporting them, as before alleged, from said Renner to said Sioux City,”

and

“that the 19 hogs which so died, as heretofore alleged, were of the value of $255.47 when delivered to defendant, and when delivered to plaintiffs’ consignees at said Sioux City, as before alleged, they were only of the value of $32.47.”

These allegations are denied by the answer, wherein it is averred

“that the said hogs were received for transportation and transported by the defendant and delivered under and by virtue of the terms of a certain written contract executed on or about the 24th day of June, 1901, by and between the said plaintiffs and defendant, and not otherwise; that among the agreements, stipulations, and conditions contained in said contract were the following, to-wit:

First. That the company shall not be liable as an insurer of the live stock transported under this agreement.

Second. That the company shall not be liable for the acts of the animals to themselves or to each other, such as biting, kicking, goring, or smothering, nor for loss or damage arising from the condition of the animals, nor from their jumping from the cars, nor from loading or unloading them.

Third. That the company shall not be liable for injury or damage to said stock by or on account of the delay thereof during its transportation, and it does not agree to deliver said stock at destination at any specified time.”

The evidence disclosed no delay in transporting the property, and the existence of a written contract containing the alleged stipulations; hence only two issues remained at the close of the trial, namely, whether defendant’s failure to “wet down” the animals caused their death, and the amount of plaintiffs’ recovery, if entitled to recover at all.

Under the charge of the learned circuit court the verdict can be sustained only on the theory that the plaintiffs proved by a fair preponderance of the evidence that defendant’s failure to “wet down” the hogs while in transit on ifs own lines was the proximate cause of their loss. It is contended that the evidence is insufficient to support such conclusion. The distance between Renner and Sioux City is admitted to be about 95 miles. An employe of the plaintiffs testified that he loaded the hogs about 8 o’clock in the evening, that they were “wet down”...