Rarey v. Mcadoo
| Decision Date | 22 February 1922 |
| Docket Number | No. 2510.,2510. |
| Parties | RAREYv.MCADOO, DIRECTOR GENERAL OF RAILROADS. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A requested instruction not to consider a certain issue upon which there was no evidence was properly refused, where the instructions given limited recovery to another issue.
A requested instruction not applicable to the case is properly refused.
Evidence of the similarity in condition of cattle of plaintiff and those of another owner in the same shipment at a designated point, and their dissimilarity after leaving that point, was relevant and admissible on the issue of defendant's negligence in handling plaintiff's cattle at that point.
Testimony as to weights of cattle at destination, based on personal knowledge, is primary evidence and admissible.
A portion of a statement of a witness contradictory of a fact admitted by the pleadings was immaterial and properly excluded.
Appeal from District Court, Eddy County; Bratton, Judge.
Action by J. F. Rarey against W. G. McAdoo, Director General of Railroads. Judgment for plaintiff, and the defendant appeals. Affirmed.
A requested instruction not to consider a certain issue upon which there was no evidence was properly refused, where the instructions given limited recovery to another issue.
W. C. Reid, C. M. Botts, and George S. Downer, all of Albuquerque, for appellant.
Stennis & Phillips, of Carlsbad, for appellee.
Plaintiff shipped from Red Bluff three cars of cattle containing 102 head and from Carlsbad six cars containing 190 head, all consigned to Kansas City. The shipments were consolidated at Carlsbad, making nine cars with 292 head. A considerable number died during the trip, and plaintiff commenced this action to recover their value in damages.
The complaint alleged generally that the loss was occasioned by negligence of the carrier, and specifically charged that the cattle were unnecessarily detained on the trip for approximately 50 hours, and that the cars were so carelessly and roughly handled in switching at Clovis that the cattle were knocked down, trampled one another, and were bruised and injured to such an extent that large numbers of them died. The answer amounted to a general denial. There was a jury trial resulting in a verdict for plaintiff upon which judgment was rendered.
[1] No evidence was introduced in support of the charge that there was a 50-hour delay in reaching the destination. The court was requested to instruct the jury not to consider this allegation. The court refused this. In other instructions the jury was told that there could be no recovery unless there was proof, amounting to a preponderance of the evidence, that the death of the cattle resulted from the carelessness of the defendant, and, by another, that the burden was upon plaintiff to establish “each and all of the material issues” of his complaint. By a further instruction the negligence was practically limited to the careless and rough handling of the cattle in the switching at Clovis. These instructions sufficiently advised the jury that they should not consider an allegation wholly unsupported by proof, and a specific instruction to that effect was therefore unnecessary.
[2] In support of his allegation that the injuries to the cattle resulted from negligent switching at Clovis, plaintiff introduced testimony to the effect that following the switching a corner of one of the cars was twisted or broken, and that a timber supporting the upper deck of another was loose or broken, while prior to that time these cars were in good condition. Appellant requested the court to instruct the jury in effect that the fact that this timber was found to be loose or broken after leaving Clovis could not be considered as proof of negligence, unless it resulted from a cause which could have been anticipated, or unless it might have been remedied more quickly than it was. Irrespective of whether this instruction is a correct statement of the law in cases based upon such negligence, the fault in the requested instruction lies in its lack of application. The defective condition of the car was not the basis of this action. The negligence alleged was the improper handling of the cattle at Clovis. In support of this and as one circumstance from which the jury might deduce improper and rough treatment of the cattle,...
To continue reading
Request your trial
-
Sutton v. Otis Elevator Co.
... ... v. Calvert, et al., 142 P. 569, at 571; Dodge v ... Chambers, 96 P. 178, at 181; Mulford v ... Estudille, 32 Cal. 131, at 138; Rarey v ... McAdoo, 205 P. 731, at 733; Layton v. Interstate, ... etc, Assn., 139 N.W. 463; Smith v. Vickery, 138 ... S.W. 502, at 505 P. U. C ... ...
-
Abeyta v. Atchison, T. & S.F. Ry. Co.
...234 U.S. 64, 34 S.Ct. 730, 58 L.Ed. 1214; Riverside Sand & Cement Manufacturing Co. v. Hardwick, 16 N.M. 479, 120 P. 323; Rarey v. McAdoo, 28 N.M. 14, 205 P. 731; Federal Reserve Bank of Dallas v. Upton, 34 N.M. 509, 285 P. 494; Martin v. La Motte, 55 N.M. 579, 237 P.2d 923 (and cases In Ba......
-
Fed. Reserve Bank of Dallas v. Upton.
...contract having been admitted by the pleadings. A requested instruction not applicable to the case is properly refused. Rarey v. McAdoo, 28 N. M. 14-16, 205 P. 731. 4. Appellant urges that the court erred in refusing to give the following requested instruction: “No. 4. You are instructed th......