Smith v. Hines

• Decision Date: 24 March 1921
• Citation: 196 P. 1032,33 Idaho 582
• Parties: H. W. C. SMITH, Respondent, v. WALKER D. HINES, Director-General of Railroads of the United States, Appellant
• Court: Idaho Supreme Court

196 P. 1032

33 Idaho 582

H. W. C. SMITH, Respondent, v. WALKER D. HINES, Director-General of Railroads of the United States, Appellant

Supreme Court of Idaho

March 24, 1921

COMMON CARRIER-LIABILITY-NEGLIGENCE IN DELIVERY OF LIVESTOCK-ORAL CONTRACT-NONPREJUDICIAL ERROR-INSTRUCTIONS-DAMAGES.

1. Held, that plaintiff's right to recover in this action taking the allegations of the complaint all together, is not based upon alleged oral contract, but on the alleged carelessness and negligence of defendant railroad corporation in performing its obligations as a common carrier.

2. The judgment of the lower court will not be reversed on account of error in the admission of evidence, where such error is corrected by proper admonitions or instructions to the jury to disregard such testimony, and it does not appear that such admonitions or instructions of the court have failed of their purpose.

3. Instruction in regard to liability of common carrier in providing proper facilities for unloading of livestock considered and approved.

4. A common carrier is required to deliver goods intrusted to him at a safe place accessible to the consignee, and where delivery of livestock is to be made from a car, such car must be placed by the carrier where it may be conveniently unloaded by the consignee.

5. In an action for damages, where there is substantial evidence to support the finding of the jury that defendant was negligent such finding will not be disturbed by the appellate court.

6. Where, in an action against a carrier for damages to sheep before delivery to consignee, it is alleged and proved that the market value of such sheep was depreciated by reason of the fact that they would not breed on account of the injuries sustained, and that this element of damage flowed directly from the injuries in question, the jury under proper instructions from the court may award plaintiff just compensation for the loss thereby sustained.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for damages for loss of and injury to sheep. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Geo. H Smith, H. B. Thompson and John O. Moran, for Appellant.

After a plaintiff has once stated his cause of action he must recover secundum allegata et probata, or not at all. (Elder v. Idaho-Washington Northern R. Co., 26 Idaho 209, 141 P. 982; Boehrer v. Juergens & A. Co., 133 Wis. 426, 113 N.W. 655.)

The court erred in refusing to limit the plaintiff's right of recovery to the issues of the case as made by the pleadings and in eliminating from his statement of the issues any alleged promise of the dispatcher. (Panhandle & S. F. R. Co. v. Sanderson (Tex. Civ.), 218 S.W. 540.)

The court erred in receiving evidence that some of the ewes did not breed. The admission of this evidence was obviously prejudicial to the defendant. (Young v. Extension Ditch Co., 13 Idaho 174, 89 P. 296.)

If property has a market value at the time and place of arrival, the time of the arrival of the property at its destination is the time for ascertaining its value. (Sutherland on Damages, 4th ed., sec. 906; Colsch v. C. M. & St. P. Ry. Co. (Iowa), 117 N.W. 281.)

It was error to receive evidence of the value or depreciation at any other time or place. (St. Louis & S. F. R. Co. v. Lane, 49 Tex. Civ. 541, 110 S.W. 530.)

The court erred in refusing defendant's requested instruction No. 7 and in giving his instruction No. 8. (Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L. R. A., N. S., 257; Missouri K. & T. R. Co. v. Harriman Bros., 227 U.S. 657, 33 S.Ct. 397, 57 L.Ed. 690, see, also, Rose's U.S. Notes.)

Hays, Martin, Cameron & Hays, for Respondent.

"A carrier must deliver goods at a safe place; accessible to the consignee. And where delivery is to be made from a car it must be placed where it can be conveniently unloaded." (1 Michie on Carriers, p. 537; 10 C. J. 252; 4 R. C. L., "Carriers," sec. 287; McMickle v. Wabash Ry. Co. (Mo. App.), 209 S.W. 611.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This action was brought by respondent to recover damages for the loss of and injury to certain sheep transported by the Oregon Short Line Railroad from Horseshoe Bend to Parma, Idaho.

It is alleged in the complaint that respondent was the owner and in possession of 2,003 strong, healthy ewes, in splendid condition, with good fleeces of wool, and ready for breeding, which he offered for shipment at Horseshoe Bend, consigned to himself at Parma, and which were loaded by respondent into seven cars and were received and accepted by the carrier for shipment at about 4 P. M., November 14, 1918, and the usual bill of lading issued therefor; that the shipment arrived at Nampa about 8:30 P. M., where respondent discovered that a few of the sheep were down, and "would have insisted upon his said sheep then and there being unloaded, if upon inquiry he had not been informed by the train dispatcher at Nampa, who was an agent and servant of the" appellant "that his sheep would be immediately taken to their destination at Parma, 24 miles westward, and there unloaded immediately upon their arrival"; that the shipment reached Parma about 11 P. M., whereupon respondent notified appellant's agents and servants and the persons in charge of the train that some of the sheep were down and in danger of being killed unless immediately unloaded, and demanded that an engine then and there available, or some other engine, be used to move the cars to the chutes in order that they might be unloaded at once, but appellant, its agents and servants, failed and neglected so to do, and carelessly and negligently failed and neglected to spot the cars containing respondent's sheep at the stock chutes there provided for unloading stock; that as a consequence thereof respondent and one of his employees were obliged to spot the cars by hand, and, as a result of the delay occasioned thereby, 65 sheep, of the reasonable value of $ 20 each, were killed and a large number of other sheep were seriously and permanently injured and crippled, and their usefulness and market value lessened and depreciated to the extent of $ 1,500.

The answer puts in issue all the allegations of the complaint, and as a further answer and additional defense it is alleged that whatever injury was sustained by the sheep and whatever damage was suffered by respondent was caused and directly contributed by his negligence and carelessness in overloading the cars, and that respondent knew and was advised by persons employed by the railroad that the sheep could not be safely transported unless a smaller number was loaded in each car.

Appellant contends that respondent's right to recover damages, if any, is founded upon an oral contract made with the dispatcher at Nampa, as set out in that portion of his complaint italicized above, upon the theory, as we understand it, that respondent had elected to rest his case not upon the carrier's liability as generally obtaining, but upon a specific oral agreement; hence the burden was upon him to sustain the averment by proof. Appellant's contention is best exemplified in its requested instruction No. 2, which was refused by the court and assigned as error, as follows:

"You are instructed that the plaintiff bases his suit solely on the alleged agreement of the train-dispatcher at Nampa, that the plaintiff's sheep would be immediately taken to their destination at Parma, and there unloaded immediately upon their arrival, and the further averment that upon the arrival of the sheep at Parma the defendant negligently failed...