Southern Pac. Co. v. Stewart

• Decision Date: 03 July 1916
• Docket Number: 2745.
• Parties: SOUTHERN PAC. CO. v. STEWART. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

233 F. 956

SOUTHERN PAC. CO. v. STEWART. ^[1]

No. 2745.

United States Court of Appeals, Ninth Circuit.

July 3, 1916

The defendant in error, as plaintiff in an action in the court below, recovered a judgment against the defendant therein in the sum of $2,090 damages for injuries to dairy cows shipped by the plaintiff on July 1, 1913, from San Luis Obispo, Cal over the defendant's road and that of its connecting carrier, to Phoenix, Ariz. In the complaint it was alleged that the defendant negligently unloaded the animals on July 4, 1913, at Yuma, Ariz., when the weather was extremely hot and into pens which were dusty and unprotected from the sun instead of transporting them to their destination. To this it was answered that at the time when the cattle arrived at Yuma they had been confined in the cars for about 20 hours without feed, water, or rest, and that it was necessary to unload them at that place in order to comply with the Twenty-Eight Hour Law. Further answer was made that the cattle were being transported under a contract in writing whereby the plaintiff agreed that, in case of loss or damage to the cattle, notice in writing should be given to the defendant within 10 days after unloading at destination, that otherwise all claims for loss or damage were waived, and that the plaintiff failed to give such notice within the time specified. It was further alleged that in said writing it was further stipulated that the agreed value of the cattle was the sum of $30 per head and that, in case of loss or damage for which the carrier might be liable, the amount claimed for each animal so lost or damaged should be adjusted on the basis of that agreed value, and that the contract was made and entered into in consideration of the plaintiff obtaining a lower freight rate than would have been assessed, had a higher valuation been placed upon the animals.

J. C. Forest, of Phoenix, Ariz., and Francis M. Hartman, of Tucson, Ariz., for plaintiff in error.

Hayes & Laney, of Phoenix, Ariz., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

Several assignments are addressed to alleged errors of the trial court in sustaining objections to testimony offered by the defendant, the object of which was to show that the feeding and rest pen at Yuma was maintained in as good condition as was customary with railroads in the Southwest, and in as good condition as pens and corrals at El Paso, Tex., Tucson, Bowie, and Phoenix, Ariz., and Indio, Cal. The evidence so offered would have tended only to show that the treatment of the plaintiff's cattle at Yuma was the usual and ordinary treatment of cattle by the defendant and other carriers in that section of the country, or sections similar in climate. The evidence, if admitted, would not have tended to acquit the defendant of negligence. It would have been no defense to the negligence charged to prove that the defendant committed similar acts of negligence elsewhere. G. Trunk R.R. co. v. Richardson et al., 91 U.S. 454, 23 L.Ed. 356.

Error is assigned to the denial of the defendant's motion for an instructed verdict in its favor. The grounds of the motion were that it was necessary for the defendant to unload the cattle at Yuma in order to comply with the Twenty-Eight Hour Law, that the plaintiff abandoned his cattle at that point, and that the damage was the result of his own gross negligence. The evidence was undisputed that the defendant's cattle pens at Yuma were open corrals in the sand, wholly without shade or covering of any kind, that the weather was very hot, that the cattle arrived at Yuma in good condition, and that the plaintiff earnestly and repeatedly protested against unloading the same at that point, and offered to sign and deliver to the defendant a release of all liability for forwarding the shipment to Gila, at which point the defendant had feed and rest pens. It is clear that under the pleadings and the evidence the defendant was not entitled to an instructed verdict. Twenty-Eight Hour Act, Sec. 1, required that the unloading should be into 'properly equipped pens for rest, water, and feeding. ' Act June 29, 1906, c. 3594, 34 Stat. 607 (Comp. St. 1913, Sec. 8651). The evidence tended strongly to show that the pens at Yuma were not properly equipped for rest, and there was evidence tending to show that the cattle could have been carried to Gila within the 28-hour period, and to Phoenix within the 36-hour period, and that, but for the defendant's persistent refusal to go further, the plaintiff would have given it a written consent to carry the cattle on to Phoenix without unloading. In charging the jury the court said:

'It is for you, and you alone, to determine whether or not the corrals and pens provided by the defendant company at Yuma were such as the law requires railroads to furnish for the proper unloading, feeding, and resting and watering of cattle.'

The court would not have been justified in ruling, as a matter of law, that the injury to the cattle resulted from their shipment from a cool, moist climate into an extremely hot climate, or that it resulted solely from the climatic conditions at Yuma. It is not disputed that the cattle arrived there in good condition, and it may be assumed that they might have been carried on their way without injury, if they had not been unloaded into the pens which the jury evidently found unfit for the purpose for which they were used.

Error is assigned to the refusal of the court to instruct the jury that if the...