Russell v. Chicago, B. & Q. Ry. Co.

• Decision Date: 05 March 1908
• Citation: 94 P. 488,37 Mont. 1
• Parties: RUSSELL v. CHICAGO, B. & Q. RY. CO.
• Court: Montana Supreme Court

94 P. 488

37 Mont. 1

RUSSELL v. CHICAGO, B. & Q. RY. CO.

Supreme Court of Montana

March 5, 1908

Appeal from District Court, Lewis and Clark County; Thos. C. Bach Judge.

Action by Edward C. Russell against the Chicago, Burlington & Quincy Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Lamb & Walker, for appellant.

W. T Pigott and E. C. Russell, for respondent.

SMITH J.

The complaint in this action reads as follows: "Plaintiff complains of the defendant, and alleges: That the defendant is a corporation organized and doing business under the laws of the state of Illinois, and doing business in the state of Montana, Wyoming, South Dakota, and Nebraska. (2) That the said defendant corporation is the owner of and maintains and operates a railroad, as a common carrier, from the city of Billings, in the state of Montana, to the city of Omaha, in the state of Nebraska. (3) That on the 25th day of October 1905, and until the 3d or 4th day of November, 1905, the plaintiff was the owner of certain cattle, to wit, ninety (90) head of cattle, consisting of thirty-three (33) steers, forty (40) cows, and seventeen (17) yearling heifers, all in good order and condition, and suitable for the market as beef cattle. (4) That on the 26th day of October, 1905, plaintiff delivered, at the city of Billings, state of Montana, to the defendant corporation, as a railroad company, the said cattle in good order and condition for transportation by said defendant to the city of Omaha, in said state of Nebraska. (5) That said defendant accepted said cattle from the plaintiff for such transportation, and undertook and agreed to transport said cattle upon its line of railroad from said city of Billings to said city of Omaha, and to deliver the said cattle at said city of Omaha in good order within a reasonable time. (6) That, by the use of proper means of transportation and proper management of its trains and railroad, the said defendant should have delivered said cattle at said city of Omaha upon the 29th day of October, 1905, so that said cattle should have been placed upon the cattle market in said city of Omaha on Monday, the 30th day of October, 1905. (7) That by reason of the negligence of the defendant in not furnishing good and sufficient motive power and cars, and in not properly managing the running of its trains, whereby the train carrying said cattle was constantly delayed, said cattle being upon the cars without being unloaded and without food and water for more than 60 hours between the city of Billings, in the state of Montana, and the town of Alliance, state of Nebraska, and was otherwise delayed, said cattle were not delivered by defendant at said city of Omaha until the afternoon of Wednesday, the 1st day of November, 1905, too late to be placed upon the cattle market of said city of Omaha upon that day. *** That plaintiff is informed and believes that during said negligent delay in transportation, from October 30, 1905, to November 2, 1905, that the market price for said cattle declined in the price per hundredweight; that on account of said negligent delay in transportation said cattle shrank greatly in weight and depreciated greatly in price on account thereof. (8) That, by reason of the said negligence of the defendant, plaintiff was damaged in the sum of four hundred and eighty ($480) dollars. Wherefore plaintiff prays judgment against the defendant for the sum of four hundred and eighty ($480) dollars and interest thereon at the rate of eight (8) per cent. per annum, from the 4th day of November, 1905, and for his costs herein." The following is the defendant's answer: "Comes now the defendant, and for its answer to complaint of plaintiff in the above-entitled action admits, denies, and alleges: (1) Admits the defendant is a corporation doing business in the states of Montana, Wyoming, South Dakota, and Nebraska. (2) Admits the allegations contained in paragraphs 2, 3, and 4 of plaintiff's complaint. (3) Admits that this defendant accepted said cattle mentioned in plaintiff's complaint for transportation, and undertook and agreed to transport said cattle upon its line of railroad from the city of Billings to the city of Omaha, and to deliver the cattle at the city of Omaha. (4) Denies each and every allegation contained in paragraphs 6, 7, and 8 of plaintiff's complaint. Denies each and every allegation contained in plaintiff's complaint not herein specifically admitted or denied. Wherefore defendant prays judgment that the plaintiff take nothing by his complaint; that defendant be dismissed without pay and recover its costs herein." Plaintiff had a verdict for the sum of $541; and from a judgment entered thereon and an order denying a new trial, defendant appeals.

It is contended that the evidence is insufficient to support the judgment, for the following reasons: "There is a total absence of any evidence showing any negligence upon the part of the defendant, and the only evidence in the record showing any occasion for delay is to the effect that the train was 'delayed by two wrecks of other trains obstructing the road, and by the derailing of the trucks of the tender of one engine of our train' (meaning the train upon which the cattle were shipped), and from this evidence it could not be said that the defendant was guilty of negligence, for the negligence might have been occasioned by some other person or some other railway company causing the delay, and the derailing of the trucks of the tender of one of the engines of the train upon which plaintiff's cattle were shipped might have been occasioned by some reason other than the negligence of the defendant. The complaint alleges that the negligence consisted of 'not furnishing good and sufficient motive power and cars, and in not properly managing the running of its trains,' but there is a total absence of any evidence tending in any wise to support this allegation. There is also a total want of any competent evidence showing that there was any shrinkage of certain of the cattle in question by reason...