Railway Co. v. Henderson

• Decision Date: 11 March 1893
• Citation: 21 S.W. 878,57 Ark. 402
• Parties: RAILWAY COMPANY v. HENDERSON
• Court: Arkansas Supreme Court

21 S.W. 878

57 Ark. 402

RAILWAY COMPANY v. HENDERSON

Supreme Court of Arkansas

March 11, 1893

Appeal from White Circuit Court, GRANT GREEN, JR. Judge.

Action by Henderson & Jelks against the St. Louis, Iron Mountain & Southern Railway Company. The complaint substantially alleged that plaintiffs purchased, at Auvergne, in Jackson county Arkansas, 13 head of Jersey cattle; that their vendor, J. T Henderson, contracted with the Batesville & Brinkley Railway Company to transport the cattle from Auvergne to Searcy in White county, Arkansas; that the latter company furnished a car, which it had obtained from defendant railway company for the purpose of transporting the cattle; that the car so furnished was at the time infected with the germs of Texas or Southern cattle fever; that said infection was produced by the droppings of diseased cattle which had been transported therein, and that defendant had negligently permitted such droppings to remain in the car until it had become infected with the germs of the cattle fever; that, by reason of said infected condition of the car, plaintiffs' cattle became infected with the fever, and in a short time after their arrival at Searcy nine of them took sick and died.

The answer admitted "that J. T. Henderson had made a contract with the Batesville & Brinkley Railway Company, as mentioned in the complaint. It denied that it furnished the said Henderson, at Auvergne, or elsewhere, a car as alleged. It denied that the car in which said animals were transported belonged to the defendant company, or that it had carried any cattle diseased with the Texas or Southern cattle fever, as alleged in the complaint. It denied that plaintiff's cattle contracted the Texas or Southern cattle fever by reason of any act of negligence or carelessness on its part. It denied that the said cattle died of Texas or Southern cattle fever, or that it was in any manner responsible for their death, injury or sickness."

J. T Henderson, the vendor of the cattle, testified: "that in the summer of 1889, he sold twelve head of cattle to Henderson & Jelks for $ 100 per head. After selling the cattle, he went to Mr. Flynn, superintendent of the Batesville & Brinkley Railway Company for a rate to Searcy, and Flynn told him that, as the stock would have to pass over the Iron Mountain and Searcy & West Point Railroads, to get a special rate from the Iron Mountain for the entire haul. Witness did get a special rate at $ 25 per car from Auvergne to Searcy. After the rate was given him, he then asked the Batesville & Brinkley Railway Company for a car, and on July 17th Missouri Pacific car No. 6335 was furnished witness and placed at the station of Auvergne by the Batesville & Brinkley Railway Company. Witness then signed the live stock contract in evidence. After making the contract, witness and one of his hands went into the car at Auvergne and cleaned it out. There was some manure, sawdust and coal in the bottom of the car. Witness took the shovel and endeavored to throw it out, but it was so hard and caked so hard to the bottom of the car, that he found it more work than he cared to do, so he stopped and did not throw it out. There was about two or three inches of the stuff on the floor. Witness then had his wagons haul several loads of pine sawdust, and he himself had the floor of the car all thoroughly covered with pine sawdust from five to six inches deep. After this was done, he then led his stock, one at a time, into the car, and tied each head to the slats of the car. The cattle were in apparent perfect health. There had been no disease on his place or among his cattle, and none of the cattle had been sick before they left his place; there had been no Texas or Southern cattle fever on his farm, although there had been some at that time at Newport, in Jackson county, nine miles distant. Witness heard of no Texas fever nearer his place where the cattle were shipped than Newport, which was nine miles. He had about seventy-five or one hundred head of cattle. They had all run together in the same herd. There were none sick, and those that remained remained perfectly healthy. In putting the cattle in the car, witness tied each one of them to the car, giving enough length in the rope to allow the cattle to eat, drink or lie down. This is the way he usually shipped them, and he considered it the best way. What little manure and and sawdust witness took from the car was taken from the middle of the car."

David Brennan, a witness, was present when the cattle were loaded upon the car at Auvergne on the Batesville & Brinkley Railroad. J. T. Henderson, the shipper, B. B. Phillips, Boyd Drennan and himself were present and assisted witness in loading the cattle. They were loaded about 3:30 on the afternoon of July 17th. The agent of the Batesville & Brinkley Railroad was present. The loading was superintended by himself and J. T. Henderson, the shipper. Witness took care of the cattle all the way while on the train. Witness had a pass over the road, and it was his name signed and endorsed on the live stock contract in evidence. The cattle were seventeen hours on the cars, coming from Auvergne to Searcy. Witness examined the car before it was loaded at Auvergne and it had been occupied by cattle. It had been loaded with wood and stoves prior to loading the cattle, but apparently had been quite recently occupied by cattle. Witness made a personal effort to clean out the car before loading the stock. It looked like it had been recently loaded with wood and stoves, and sometime prior to this with cattle, and it looked like it had been used in the transportation of coal, wood or stoves within the last six months prior to its being loaded at Auvergne. Defendant knew that the State of Texas was infected with Texas or Southern cattle fever. He did not know of any well established line running north or south of Little Rock that would contain all the territory infected with the disease. He did not know whether Arkansas or any part of it was within the infected district. He knew that in Jackson county, all during the summer 1889, there had been Texas fever at Newport."

Dr. J. M. Jelks, one of the plaintiffs, testified that their cattle reached Searcy on July 17th, 1889, and were delivered to them by the Searcy & West Point Railroad. They were unloaded, driven through Searcy and about half-mile on the west side of town, and there put in a 40-acre field. This field had been open for a long time, and all of the cattle in the neighborhood had been in the habit of grazing on the field, and, just before the Jersey cattle arrived, witness fenced up the field and placed their cattle in it. About two weeks after this stock arrived, they commenced getting sick. A cow took sick first, and died in two or three days afterwards. Nearly all of the balance of the cattle took sick and nine of them died after three or four days' sickness. The bull was not put with other cattle in the pasture. He was kept in a stall in the livery stable just across the street from the court house, was watered and fed in the stable. He was only out once or twice and then in a small lot of perhaps an acre where Mr. Rogers kept his family cow. The bull died with the same disease the others died with. The heifer which was sent to the college ran in the pasture with the other cattle, but she did not die. Witness had heard of no other cattle dying about Searcy at that time.

J. T. Flynn, superintendent of the Batesville & Brinkley Railway Company, testified, with reference to the car in which the cattle were transported, as follows: "I do not know how the car was obtained. I do not know who made the order, nor what was said to the agent of the Iron Mountain Railway; I only know I directed our agent there (Newport) to get a car. I did not get the car myself." The following question was then asked him, over defendant's objection: Q. "In order to have gotten this car for the purpose of shipping J. T. Henderson's cattle, what information would you have to give in order to get the car you wanted?" The answer was permitted to be given over objection: A. "In making requisition for cars, we had to give our connecting carrier information for the purpose we had to use the car, and for what point it was destined."

J. R Hubbard testified "that he was agent of the defendant railway company at Diaz, a station three miles north of Newport, and had in charge the records of that office. He stated that J. W. Clayton was the agent at Diaz during the year 1889, and had kept the records there; that Clayton was not in the employ of defendant railway company, having left its employ in August, 1890, and his whereabouts were unknown." (Counsel for defendant stated that subpoenas had been issued to Woodruff, Jackson and Pulaski counties for J. W. Clayton, and that a special agent had been employed hunting for him for sometime, but that it had been impossible to find his whereabouts.) The following question was then asked witness: "Q. Have you in this court the records of the movements of cars at Diaz during the months of June and July, 1889, and, if you have, please turn to the record of the months of June and July and give us the movements of the Missouri Pacific car No. 6335, during those months, if the same appears upon your records?" To this question plaintiffs objected as incompetent and immaterial. The objection was sustained, and defendant excepted. The defendant then offered in evidence the record kept at Diaz by the defendant railroad company in June and July, 1889, which showed the Missouri Pacific car No. 6335 arrived at Diaz on June 27th, loaded with coal, consigned to W. T. Kelly, division superintendent; that it remained at Diaz loaded with coal on June 28th, 29th and 30th, July 1st, 2d, 3d, 4th, 5th,...