Schneider v. Davis

• Decision Date: 15 February 1923
• Docket Number: 22215
• Citation: 192 N.W. 230,109 Neb. 638
• Parties: WILHELMINA SCHNEIDER, ADMINISTRATRIX, APPELLEE, v. JAMES C. DAVIS, APPELLANT: UNION STOCK YARDS COMPANY, APPELLEE
• Court: Nebraska Supreme Court

192 N.W. 230

109 Neb. 638

WILHELMINA SCHNEIDER, ADMINISTRATRIX, APPELLEE, v. JAMES C. DAVIS, APPELLANT:

UNION STOCK YARDS COMPANY, APPELLEE

No. 22215

Supreme Court of Nebraska

February 15, 1923

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.

AFFIRMED.

Byron Clark, Jesse L. Root and J. W. Weingarten, for appellant.

A. H Murdock and Brown, Baxter & Van Dusen, contra.

Heard before MORRISSEY, C. J., LETTON, DEAN, ALDRICH and GOOD, JJ RAPER, District Judge.

OPINION

LETTON, J.

Plaintiff's decedent delivered to the director general of railroads at Rosalie, Nebraska, with other live stock, 31 hogs consigned to Bliss & Wellman at South Omaha. The car containing the shipment was delivered by the director general to the defendant Union Stock Yards Company. Twenty-six hogs only were delivered to the consignee by that company. This action is for the value of the missing hogs.

Bliss & Wellman, the consignee, controlled certain pens at the Union Stock Yards in Omaha. Cars loaded with live stock consigned to dealers at the Omaha market are delivered by the director general to the Stock Yards Company at a transfer track. From the transfer track these cars are transported by the company to the unloading chutes at the stock yards. From these chutes the live stock is driven through alley-ways to pens which are used by the different commission firms. The usual practice is to count the stock as it leaves the chutes, though sometimes the stock is accepted by the commission firms at the unloading chutes or in the alleys. Under section 5415, Comp. St. 1922, the initial carrier is responsible in the first instance for any loss occurring upon the line of the connecting carrier. The director general insists that the hogs were lost after they were taken from the pens at the unloading chute to be driven to the pens of the consignee; that after they left the chutes they were in possession of the Union Stock Yards Company as a bailee only, and not as a common carrier; that, consequently, the director general as the initial carrier is not liable for the loss. Upon the same day this shipment was received by the consignee, another shipment by a different consignor to another consignee had an excess of five head of hogs, which were delivered to the consignee of that shipment.

Appellant cites Covington Stock Yards Co. v. Keith, 139 U.S. 128, 35 L.Ed. 73, 11 S.Ct. 461, in support of the proposition that delivery to the unloading chutes terminates the relation of common carrier and its delivery to the consignee, but we find this language in the opinion in that case:

"When animals are offered to a carrier of live stock to be transported, it is its duty to receive them; and that duty cannot be efficiently discharged, at least in a town or city, without the aid of yards in which the stock offered for shipment can be received and handled with safety, and without inconvenience to the public, while being loaded upon the cars in which they are to be transported. So, when live stock reach the place to which they are consigned, it is the duty of the carrier to deliver them to the consignee; and such delivery cannot be safely or effectively made except in or through inclosed yards or lots, convenient to the place of unloading. In other words, the duty to receive, transport, and deliver live stock will not be fully discharged unless the carrier makes such provision, at the place of loading, as will enable it to properly receive and load the stock, and such provision, at the place of unloading, as will enable it to properly deliver the stock to the consignee."

We agree with this statement of the law. The entire system of unloading chutes, alleys, gates, pens, etc., is designed for the express purpose of facilitating the forwarding and the receipt and delivery of live stock to the consignee, and form a part of the machinery of transportation. The liability of...