Philpott v. Davis

• Decision Date: 07 April 1923
• Docket Number: 5933.
• Citation: 291 F. 370
• Parties: PHILPOTT v. DAVIS, as Agent.
• Court: U.S. Court of Appeals — Eighth Circuit

291 F. 370

PHILPOTT v. DAVIS, as Agent.

No. 5933.

United States Court of Appeals, Eighth Circuit.

April 7, 1923

J. J Harrington and M. F. Harrington, both of O'Neill, Neb for plaintiff in error.

J. W Weingarten, of Omaha, Neb. (Byron Clark, Jesse L. Root, and C. W. Krohl, all of Omaha, Neb., on the brief), for defendant in error.

Before SANBORN and KENYON, Circuit Judges, and POLLOCK, District judge.

POLLOCK District Judge.

This action was brought by plaintiff in error as plaintiff below against Walker D. Hines, as Director of Railroads, while the railroad systems of the country were under government control and operation, to recover damages for the loss by fire of valuable horses, mares, and other personal property of plaintiff while the same was loaded in a car standing on the railway line of the Chicago, Burlington & Quincy Railway at the station of Scotts Bluff, Neb., preparatory to being transported over said line of road to the station of Crawford in said state, and from said station of Crawford over the Chicago & Northwestern Railway to the station of O'Neill in Nebraska. Under the contract of shipment entered into between the shipper and carrier, as shown by the pleadings, a representative of the shipper was to be transported by the railway company for the purpose of accompanying and caring for the animals during transportation. The contract in this respect reads as follows:

'In consideration of transportation hereby furnished for one person or persons designated by the shipper, who have indorsed their names hereon in the presence of the agent, such person or persons to accompany the stock, it is agreed that the said cars and animals contained therein are and shall be in the sole charge of such person or persons for the purpose of attention to any care of said animals in transit and said animals are to be loaded, unloaded, watered, and fed by the shipper or his agents in charge.'

It was alleged in the petition as ground for recovery of the damages prayed as follows:

Hence, it appears the ground of plaintiff's complaint was actionable negligence on the part of the agents, servants, or employes of

'The said car and its contents caught fire through the wrongful unlawful, and negligent conduct of the defendant as such common carrier, and all of said horses, hay, bridles, halters, and barrels were burned and destroyed by fire.' the carrier through which the loss resulted to plaintiff. In this state of the pleadings, under the law of the state of Nebraska, as many times declared by the Supreme Court of that state (see Chicago, St. P., M. & O.R. Co. v. Schuldt, 66 Neb. 43, 92 N.W. 162; Cleve...