Southern Pac. Co. v. Arnett

• Decision Date: 23 November 1903
• Docket Number: 1,812.
• Citation: 126 F. 75
• Parties: SOUTHERN PAC. CO. v. ARNETT.
• Court: U.S. Court of Appeals — Eighth Circuit

126 F. 75

SOUTHERN PAC. CO. v. ARNETT.

No. 1,812.

United States Court of Appeals, Eighth Circuit.

November 23, 1903

Syllabus by the Court

The failure of a shipper to notify or demand of a railroad company that it shall stop a train of stock so that he can water, feed, and rest the cattle before they have been confined on the cars more than 28 hours (Act March 3, 1873 17 Stat. 584, c. 252 (U.S. Comp. St. 1901, p. 2995, Sec 4386)), is not necessarily fatal in all cases to his right to recover for damages caused by the negligent delay and confinement of the cattle, if he has in no way requested or consented to the delay or to the continued confinement of the stock.

The presumption in an appellate court is that the charge of the court below was correct and was applicable to the facts presented by the evidence, and, in the absence of proof to the contrary by the record, this presumption will prevail.

Delays incident to ordinary transportation are the same as reasonable delays--as delays consistent with ordinary care.

The question whether or not interest shall be allowed on damages for a tort is a question for the jury and not for the court.

The error in an instruction which directs the jury to allow interest on damages for a tort is waived unless a specific exception, which calls it to the attention of the court, is taken before the jury retires. A general exception to the measure of damages is insufficient.

Interest upon damages for a breach of a contract is generally recoverable as a matter of law. It is not error for a court to instruct the jury to allow interest from the time of demand upon damages allowed for the breach of a contract to transport stock with reasonable care.

Henry G. Herbel (Martin L. Clardy, on the brief), for plaintiff in error.

S. D Catherwood (R. E. Shepherd, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and HOOK, District judge.

SANBORN Circuit Judge.

This writ of error challenges a judgment against the Southern Pacific Company for its alleged negligence in the transportation of cattle. The stock was carried by it from Caliente, in the state of California, by way of Sacramento and Reno, to Ogden, in the state of Utah, under a written contract with the shipper which provided that it was to be transported 'under certain rates, rules and conditions as expressed in general freight department circular, No. G.F.D. 3 (No. G.F.O. 341 revised) amendments thereto, or superseding issues thereof,' that the shipper 'assumes all risk of loss or damage of, or to stock * * * by reason of delay incident to ordinary transportation,' and that the shipper will 'load at place of shipment, unload and reload at resting places, and unload at destination and feed and water at his expense and attend the stock en route. ' The plaintiff below, A. H. Arnett, alleged that the cattle, which were owned by a copartnership of which he is the surviving member, were injured by the unnecessary delay of the train which bore them, and by the confinement of the cattle in the cars without feed, water, or rest for more than 28 hours between Caliente and Reno, and by their delay and confinement for more than 28 hours between Reno and Ogden, in violation of the act of March 3, 1873, 17 Stat. 584, c. 252 (U.S. Comp. St. 1901, p. 2995, Sec. 4386). The company denied the negligence, and alleged that any injuries which the cattle sustained during the transportation were caused by their weak and unfit condition when they were shipped, by the failure of the men in charge of the stock for the shipper, during their transportation, to unload, feed, and water them at Sacramento and at other stopping places along the route where they could have been unloaded and fed, and by the consent and direction of these men to the company to carry the cattle through from Caliente to Ogden with but a single stop for rest, food, and water.

The case was tried to a jury, and the first specification of error is that the court refused to direct the jury to return a verdict in favor of the defendant. But the evidence is conclusive that the cattle were kept confined in cars for more than 28 hours without food or water, and that they were thereby injured, and, while there is testimony to the effect that the agents of the shipper consented to this confinement or requested the continuous transportation, this evidence is contradicted, and there is testimony to the effect that it was the effect of the poor management and the unnecessary delay of the train by the defendant.

It is said that the peremptory instruction should have been given because the delay in the transportation and the long confinement of the cattle were in accordance with the rules and regulations of the company governing the carriage of live stock subject to which the cattle were shipped by the terms of the written agreement. But the record fails to sustain this position. The contract provided that these rules were 'the rules and regulations governing the transportation of live stock as per circular No. G.F.D. 3 (No. G.F.O. 341, revised) amendments thereto and superseding issues thereof,' and none of these circulars, amendments, or superseding issues, and no evidence of their contents, appear to have been introduced in evidence, so that the court below had no criterion, and this court has none, by which to determine whether or not the train was operated in accordance with the rules agreed upon by the parties. In this imperfect state of the evidence we cannot presume that the delay and the confinement were in accordance with the rules designated in the contract. In actions at law this is a court for the correction of the errors of the court below only. The burden is on the plaintiff in error to establish the existence of those errors, and in the absence of proof by the record that a question of law arose, and that it was presented to and ruled upon by the court below, no error is established, because none could arise concerning a question which was not presented, considered, or decided by the trial court. Chicago G.W. Ry. Co. v. Price, 38 C.C.A. 239, 250, 97 F. 423, 434; U.S. v. Patrick, 20 C.C.A. 11, 17, 73 F. 800, 806; Lesser Cotton Co. v. St. Louis, I.M. & S. Ry. Co., 52 C.C.A. 95, 105, 114 F. 133, 143; McCarty v. U.S., 101 F. 113, 41 C.C.A. 242; Myers v. Brown, 102 F. 250, 42 C.C.A. 320; South Penn Oil Co. V. Latshaw, 111 F. 598, 599, 49 C.C.A. 478, 479; Jones v. Buckell, 104 U.S. 554, 26 L.Ed. 841.

Another argument in support of this specification is that the delay in the operation of the train was 'incident to ordinary transportation,' and hence that the company was exempt from liability for it by the express terms of the contract. But there was substantial testimony, sufficient in our opinion to sustain a finding by a jury to that effect, that a part at least of the delay which may have resulted in the stock in the cars, was not incident to ordinary transportation, and was not a customary attribute of it. A thoughtful review of all the evidence in the record, in the light of the contract between these parties, compels the conclusion that the court below committed no error when it refused to instruct the jury to return a verdict for the defendant.

Another criticism of the action of the court at the close of the trial is that it refused to instruct the jury:

'The court charges that it will be your duty, in the examination and consideration of this case, to test the negligence, if any, of the plaintiffs or defendant, as the case may be, in the light of the definition of the word 'negligence' now given you by the court: 'Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or the doing of what such a person under existing circumstances would not have done. The essence of the failure may lie in omission or commission;'' and that it charged them that 'negligence is a failure to exercise ordinary care; a failure to exercise that care that an ordinarily prudent man would exercise in his own business where the loss resulting from the want of such care would fall on him.'

The complaint is that these rulings were erroneous because the true definition of negligence is the failure to exercise such care as an ordinarily prudent person would exercise under similar circumstances, and that the charge of the court that it was the failure to exercise such care as one would ordinarily exercise in his own business, where the loss resulting from the want of such care would fall upon him, cast too heavy a burden upon the defendant. But under the facts and circumstances of this case there was no difference between the two definitions, and there could have been no prejudicial error in the use of the one instead of the other. An ordinarily prudent person under circumstances similar to those detailed in this evidence would have been the owner and operator of a railroad engaged in his own business of carrying cattle along its line, and any loss resulting from the want of ordinary care on his part would have fallen upon him.

It is specified as error that the court refused to charge the jury:

'If you believe from the evidence that

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