Reading v. Chicago, B. & Q. R. Co.

• Decision Date: 02 April 1912
• Citation: 145 S.W. 1166
• Court: Missouri Court of Appeals
• Parties: READING v. CHICAGO, B. & Q. R. CO.

145 S.W. 1166

READING v. CHICAGO, B. & Q. R. CO.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

1. CARRIERS (§ 215) — CARRIAGE OF LIVE STOCK—MAINTENANCE OF STOCK PENS.

A railroad company, as a common carrier of live stock, must maintain yards or stock pens in reasonably safe condition for the reception of stock for shipment over its road.

2. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK—DELIVERY TO STOCK PENS—DELIVERY TO CARRIER—EVIDENCE.

In an action for the death of hogs from overheating while in the stock pen of the defendant

railway company prior to being loaded onto a car, evidence held to sustain a finding that the delivery in the pen amounted to a delivery to the company.

3. CARRIERS (§ 230) — CARRIAGE OF LIVE STOCK—DELIVERY TO STOCK PENS—CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Though it may have been careless in a shipper to corral 82 fat hogs in a dry pen on a hot day in June, without looking closely to the ventilation, where the situation was not so obviously dangerous that no reasonably prudent man would have placed the hogs in the pen for the time being, whether the shipper was guilty of contributory negligence was for the jury.

4. TRIAL (§ 251)—INSTRUCTIONS—ABSTRACT INSTRUCTIONS.

Where, in an action against a carrier of live stock for the death of hogs by overheating while awaiting shipment in a stock pen, the negligence charged was that the stock pen was too small, that the defendant had allowed weeds and grass to grow and railroad ties to be stacked around and adjacent to the pen, so that no breeze blew on the hogs therein, and that the defendant had provided no shelter or water therein, an instruction authorizing a verdict for plaintiff, if the jury found the death of the hogs "was caused by the negligence, if any, of the defendant in failing to provide a reasonably safe place to receive and care for said hogs after being received by it and awaiting shipment over its line," was improper, as instructions authorizing a recovery should submit only the specific acts of negligence charged or such of them as the evidence tends to prove.

Appeal from Louisiana Court of Common Pleas; D. H. Eby, Judge.

Action by James Lee Reading against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Palmer Trimble and John W. Matson, for appellant. Pearson & Pearson, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of defendant's negligence in maintaining its stock pen. Plaintiff recovered, and defendant prosecutes the appeal.

It appears defendant maintains a stock pen for the accommodation of shippers at a siding or station on its railroad at Reading, about seven miles from Louisiana, Mo. Plaintiff is a farmer, and ships cattle and hogs over defendant's railroad from Reading Station several times each year. Defendant maintains no office and has no agent at Reading; but all shipments of stock from that point are negotiated through its freight agent at Louisiana, seven miles distant.

On June 29th plaintiff telephoned defendant's agent at Louisiana that he desired to ship a car load of hogs from Reading on the evening of the following day, and requested a car for that purpose. Defendant's agent assured him that the car would be furnished in due time, and on the following morning plaintiff, together with others, drove the hogs about three miles from his home to Reading Station. As the weather was warm, the hogs, 82 in number, were removed from plaintiff's farm to defendant's stock pen in the early part of the day. It appears that by 10:30 o'clock plaintiff had delivered all of the 82 hogs in good order and condition in defendant's stock pen at Reading, to await the arrival of the car in which they were to be loaded in the cool of the evening for the freight due there about 9 p. m. After having placed the hogs in the stock pen, plaintiff returned to his home and telephoned defendant's freight agent at Louisiana, Mo., the hogs were delivered in the pen, and to bill them out. In response to this message, defendant's agent answered, "All right," and took a memorandum over the telephone of the number of the hogs, their character, the consignee, and their destination at East St. Louis. About the middle of the afternoon, 34 of the hogs were found dead from overheat, and another died soon after.

The petition charges that defendant so carelessly and negligently maintained its stock pen at Reading as to prevent ventilation and the circulation of air therein, and that it is because of this negligence the hogs came to their death. It is averred that defendant negligently piled railroad ties along and adjacent to one side of the stock pen and permitted tall weeds and grass to grow up and stand thick adjacent to all the remaining sides thereof, so as to prevent the free circulation of air within the pen. The evidence tends to prove that plaintiff drove his hogs carefully from home in the early part of the day, and permitted them to cool off thoroughly before placing them in the pen about 10 o'clock in the forenoon. If the evidence is to be accepted as true, as it was by the jury, the hogs were certainly sound and in good order when plaintiff delivered them to defendant in the pen. The evidence tends to prove, too, that a condition of excessive heat prevailed in the stock pen, because the circulation of air was largely impeded therein as a result of the thick growth of weeds and the pile of ties complained of in the petition. There is evidence, too, that these weeds and...