Phelps v. Great Northern Ry. Co.
| Decision Date | 21 February 1923 |
| Docket Number | 5001. |
| Citation | 213 P. 610,66 Mont. 198 |
| Parties | PHELPS ET AL. v. GREAT NORTHERN RY. CO. |
| Court | Montana Supreme Court |
Rehearing Denied March 19, 1923.
Appeal from District Court, Yellowstone County; A. C. Spencer Judge.
Action by L. G. Phelps and another against the Great Northern Railway Company. From judgment for plaintiffs and from order over ruling motion for new trial, defendant appeals. Remanded, with directions.
I Parker Veazey, Jr., W. L. Clift, and R. H. Glover, all of Great Falls, for appellant.
E. E Enterline, of Casper, Wyo., and J. W. Snellbacher, of Billings, for respondents.
This action was instituted by the plaintiffs to recover for damages alleged to have been sustained by them as shippers of certain live stock over the defendant's line of railroad.
The complaint alleges:
That the plaintiff Phelps is a citizen and resident of the state of Wyoming. That plaintiff Galbreath Cattle Company is a Montana corporation engaged in business in this state. That the defendant is a railway corporation, organized under the laws of Minnesota, and engaged as a common carrier in operating an interstate railroad extending through Montana and other states, and that it maintained a station at Mossmain, in Yellowstone county, Mont., at which point the defendant's line connected with the line of Railroad of the Chicago, Burlington & Quincy Railroad Company from Cody, Wyo. From Mossmain the defendant's line of railroad extended to Seville, in the state of Montana. That on the 16th day of July, 1917, at Cody, Wyo., the plaintiffs delivered to the Chicago, Burlington & Quincy Railroad Company 984 head of cattle in good, sound, and healthy condition, which were loaded into 32 cars and consigned for transportation over said railroad and its connectnecting carrier, the defendant, to Seville, Mont. That the cattle were promptly transported by the Chicago, Burlington & Quincy Railroad Company to Mossmain and delivered to the defendant in good, sound, and healthy condition. That when the train of cattle arrived at Mossmain the weather was extremely hot and sultry. That the defendant was advised by plaintiffs, and knew, or by the exercise of ordinary care could have known, that, unless said train was kept moving, there was great danger of the cattle becoming overheated and that injury and loss would result therefrom, and that thereafter defendant was negligent in the handling of said trainload of cattle in the following particulars:
(a) That it left the train standing on its tracks at Mossmain in a period of hot and sultry weather for about seven hours.
(b) That after the train left Mossmain it was stopped and allowed to stand for several hours in a suffocating gravel pit or deep cut, and was also unreasonably delayed at other points between Mossmain and Great Falls; that by reason of these delays it became necessary to unload said cattle at Great Falls.
(c) That after the train arrived at Great Falls it kept the cattle confined in cars for a number of hours instead of unloading them without delay, and prodded and clubbed a number of them.
(d) That it failed to afford reasonable means and opportunity for unloading, feeding, watering, and resting the cattle at Great Falls, where they were unloaded for that purpose.
(e) That it failed to unload said cattle at Great Falls into properly equipped pens for rest, feed, and water.
(f) That it did not transport the cattle to Seville within a reasonable time, so that, instead of reaching that point July 18, they did not reach there until July 22.
That by reason of these acts of negligence the cattle became "overheated, bruised, shrunken, emaciated, and rendered sick, feverish, and of stale and unmarketable appearance and condition, lowered in grade, quality, and selling market value, greatly reduced and lessened in weight, and seriously injured and damaged, and 149 head thereof were killed and died in transit," by reason of which the plaintiffs suffered damage in the sum of $45,633.
The defendant appeared in the action and filed a petition for removal thereof to the District Court of the United States in and for the District of Montana, upon the grounds that the suit is of a civil nature, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000 and (a) arises under the Constitution or laws of the United States, and (b) is between citizens of different states. A proper and sufficient removal bond for costs was filed, but the petition for removal was denied.
All the alleged negligent acts of the defendant were put in issue by its answer, which admitted the formal matters pleaded and also the receipt and transportation of the cattle by the Chicago, Burlington & Quincy Railroad Company, as alleged in the complaint, and their delivery to it at Mossmain. But it is alleged that the cattle were not in good, sound, healthy condition for shipping when they were delivered to the Burlington Railroad or when delivered to the defendant, and that said stock was shipped under a bill of lading and live stock shipping contract which provided, among other things, "that the said cars and the animals contained therein should be in the sole charge of a person designated by the shipper to accompany the same for the purpose of attention to and care of said animals in transit, and that said animals should be loaded, watered, and fed by the shipper or the agent in charge"; admitted that after the train was set out at Mossmain it was not moved therefrom until about five or six hours thereafter, and that "after said train left Mossmain until the same arrived at Great Falls, Mont., the weather was extremely hot, and that said cattle, by reason of said hot weather and the facts herein set forth, became overheated, prostrated, and sick, and that 142 head thereof died at Great Falls, Mont., either at the time of the arrival of said train there or within a few days thereafter"; denied that the death or any injury to the cattle was due to any negligence on the part of the defendant; but alleged that the same was due to and caused by certain acts or omissions of the plaintiffs, to wit: (a) That when the cattle were delivered to the Burlington for transportation, and likewise when they were delivered to the defendant at Mossmain, they were not in good shipping condition; (b) that the plaintiffs had negligently failed to water the cattle for a long time and unreasonable length of time prior to the loading thereof on the cars; (c) that they had negligently overdriven said animals and milled the same for several days prior to the loading thereof; (d) had negligently overloaded the animals in cars at Cody; (e) had negligently failed to give said cattle attention when they first showed signs of becoming weak; (f) had negligently failed to adequately care for the animals in transit; and (g) had negligently dispatched but one caretaker in charge of said live stock, who could not, by reason of the size of the shipment and otherwise, adequately care for the same--and that by reason of these acts the cattle became prostrated by heat and by lack of water and became sick so that 142 head died as set forth above.
For a second and separate defense the answer alleges that the plaintiffs' damage, if any, was due to and caused by the contributing fault and carelessness of the shippers for the same reasons and upon the same grounds above set forth.
The affirmative allegations of the answer were put in issue by the plaintiffs' reply, which further alleged that at the times mentioned in the complaint and answer the defendant did not maintain at the station of Mossmain, or along its line of railroad from said station to the station of Seville, reasonable or adequate facilities or properly equipped pens for resting, watering, and feeding the cattle; that when the train carrying the cattle arrived at Judith Gap the cattle were suffering with heat; that the defendant was thereupon advised of the condition of the cattle by the plaintiff's agent in custody of the shipment, and the defendant then told the plaintiff's agent that there were no facilities to unload said cattle for rest, care, and attention at said station, but that the train would be rushed to Great Falls, where there were adequate facilities, but that, notwithstanding these facts, the train was not transported with reasonable dispatch from Judith Gap to Great Falls.
The cause was tried before a jury, which returned a verdict in favor of plaintiffs in the sum of $20,685.90, upon which judgment was entered. The defendant moved for a new trial, which was denied, and from this judgment and the order overruling its motion for a new trial it has appealed to this court.
The testimony in the case is voluminous, and we do not deem it necessary to set it out in detail, but will refer to portions of it when necessary in the course of the discussion of the various specifications of error.
1. Defendant first contends that it was error for the court to deny its petition for removal of the cause to the federal court. This petition was based on two grounds: (1) That the action arose under the laws of the United States; (2) that it is between citizens of different states.
This is an action to enforce the common-law liability of the defendant for damages resulting from its negligence to an interstate shipment, and it is held that such an action is not one arising under "any law regulating commerce" within the meaning of the Judicial Code (Act March 3, 1911 c. 231, 36 Stat. 1092; U.S. Comp. St. § 991[8]) of which the District Court, by paragraph 1, is given jurisdiction regardless of citizenship, nor as based on the so-called Carmack Amendment to section 20 of the act, embodied in Act June 29, 1906, c. 3591, § 7, 34...
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