St. Louis & S. F. R. Co. v. Copeland

• Decision Date: 12 May 1909
• Docket Number: Case Number: 2216
• Citation: 23 Okla. 837,1909 OK 128,102 P. 104
• Parties: ST. LOUIS & S. F. R. CO. v. COPELAND.
• Court: Oklahoma Supreme Court

1909 OK 128

102 P. 104

23 Okla. 837

ST. LOUIS & S. F. R. CO. v. COPELAND.

Case Number: 2216

Supreme Court of Oklahoma

Decided: May 12, 1909

Syllabus

¶0 1. CARRIERS--Carriage of Live Stock--Exemption from Liability. The carriage of live stock involves different requirements than those involved in the carriage of inanimate objects. In view of this, it is well settled that the owner and the carrier may, by contract, provide that the carrier shall be exempt from all liability for injuries occurring to the stock disconnected and apart from the conduct and running of the trains, such as injury from loading and unloading, from overloading, suffocation, heating, and the like, or from the weakness, escape or viciousness of the stock.

2. SAME--Liability for Negligence. Such a contract, however, does not relieve the carrier from the due performance of its undertaking. It must use at least ordinary care and diligence in the performance of all its duties, and while its obligations may be limited by special contract yet it cannot be exonerated by any agreement made in anticipation thereof from liability for the gross negligence of itself or its servants.

3. NEGLIGENCE--Questions for Jury--Negligence--Contributory Negligence. Negligence and contributory negligence are usually questions for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.

4. SAME. Where from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting the question of negligence or contributory negligence, such questions are properly for the jury.

5. CARRIERS--Carriage of Live Stock--Written Request to Unload--Waiver. Where a contract for the carriage of live stock provides that the carrier shall stop its train at any of its stations for water and feed where it has facilities for so doing, whenever requested in writing by the owner of said live stock or the attendant in charge thereof, the refusal of the agents of the carrier to unload such live stock on the oral request of the owner, basing such refusal upon the ground that the freight thereon had not been paid, waived a strict compliance with the clause of the contract requiring the request to be made in writing.,

6. CARRIERS--Carriage of Live Stock--Rules Indorsed on Contract. The printed rules and regulations indorsed on the back of a contract for the transportation of live stock, under the head of "Special Notice to Agents," is no part of the contract, and is not binding upon the shipper, in the absence of some evidence of his assent to the terms of such notice.

7. CARRIERS--Carriage of Live Stock--Notice of Injury--Time of Service. A provision in a contract for the carriage of live stock which provides "that, as a condition precedent to a recovery for any damages for delay, loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer or the nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination," does not apply when at the time said live stock was unloaded and removed by the owner he did not know of the injury done said live stock, if said injuries were such as could not be ascertained within the time limited by the contract by the exercise of ordinary care

Error from District Court, Washita County; M. C. Garber, Judge.

Action by S. H. Copeland against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Flynn & Ames, for plaintiff in error.

T. A. Edwards, for defendant in error.--Negligence, question for jury: Wallace v. Lake Shore & M. S. Ry. Co. (Mich.) 95 N.W. 750; Ruppel v. Allegheny, etc., Ry. Co. (Penn. 46 Am. St. Rep. 666; 4 Cyc. 437, note; Hutch. Carriers (3rd Ed.) 419; Wilson's Rev. & Ann. St. § 706. Waiver of written request to unload cattle: Soper v. R. R. Co. (Mich.) 71 N.W. 853; Cleveland, etc., Ry. Co. v. Heath, 53 N.E. 198; Frisco v. Phillips (Okla.) 87 P. 470. Notices and indorsements on back of contract not binding on shipper: 4 Cyc. 404; Western Transp. Co. v. Newhall (Ill.) 76 Am. Dec. 760; Railroad v. Hale, 6 Mich. 244; St. L. & S. F. Ry. Co. v. Tribbey (Kan. App.) 50 P. 458; Ormsby v. Ry. Co., 4 F. 710. On service of notice of claim for damages: Frisco v. Phillips, supra; Ormsby v. Railway Co., supra;

L. & N. Ry. Co. v. Belle, 13 Ky. 393; A., T. & S. F. Ry. Co. v. Morris (Kan.) 70 P. 661.

KANE, C. J.

¶1 This was an action for damages to certain live stock, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, in the district court of Washita county. The petition alleged in substance, that on the 10th day of August, 1904, for a valuable consideration, and according to a contract between the parties, partly in writing and partly oral, the plaintiff delivered to the defendant certain live stock to be shipped from the town of Eddy, Oklahoma., to the town of Cordell, Okla.; that said live stock consisted of 4 head of horses and 15 head of cattle, constituting one car load; that it was loaded on the 10th day of August, 1904, at 3 o'clock p. m., and by proper and careful handling should have been delivered at Cordell not later than 6 o'clock a. m. on August 11, 1904, the distance between Eddy and Cordell being about 135 miles; that the defendant did not convey said car with reasonable dispatch, but so negligently and carelessly managed said train that the same was delayed at the town of Enid for a period of 10 hours, and did not reach Cordell until 4 o'clock a. m. on the 12th day of August, 1904; that the plaintiff accompanied said car of live stock as caretaker, and that during all the period said live stock was in the possession of defendant he was not supplied with any facilities for feeding, watering, and unloading the same, except at the town of Enid, where such facilities were provided and the live stock watered; that when said car reached Cordell the plaintiff requested the conductor in charge of said train to set said car on the side track where the same could be unloaded, and the request was refused, and the plaintiff demanded facilities for feeding and watering said stock, which demand was refused by the railway company's agent, and said car was held on the tracks of defendant until 10 o'clock a. m. of the 12th day of August, 1904, when it was set and the live stock unloaded; that during all this time the weather was oppressively hot; that as soon as said car was set out the live stock was unloaded; that at that time it was not apparent that said live stock was injured other than that they were greatly gaunted, and suffered on account of the long confinement, heat, and lack of feed and water, but that plaintiff did not, and could not, ascertain that the live stock had been overheated during the confinement in said car, and for that reason he was unable to notify defendant of any damage done said live stock while in said car; that upon unloading said cattle from said car the plaintiff gave them prompt and careful attention and care; that on or about the 14th day of August, 1904, it developed that the cattle shipped in said car had, on account of the negligence and carelessness of the defendant and its unwarranted delay in transporting said cattle, and by its failure to provide facilities for feeding, watering, and unloading said cattle during said transportation, and in not setting out said car to be unloaded after it arrived, said cattle had become overheated, and from the effects thereof six cows and one bull died. It was further alleged that, as soon as the injury done said cattle by reason of said overheating could be ascertained, said plaintiff gave notice thereof to the agent of the railway company, and subsequently filed a written claim for damages, which was rejected; that said live stock were of the value of $ 695, for which plaintiff prayed judgment.

¶2 The defendant by way of answer set up, first, a general denial; second, an admission that the shipment referred to was received and carried according to the terms of the written contract referred to in plaintiff's petition, but denied that any oral agreement or understanding in addition to said written contract was made by or in its behalf, and further alleged that by the terms of said written contract it was specifically provided that no agent of the defendant had authority to make any other agreement in addition to that contained in said written contract. That the plaintiff in error in all respects complied with said written contract, and transported said live stock with reasonable diligence and due care, and that the injuries sustained by said cattle were due to and caused by, negligence of the plaintiff or his agents. That by the terms of said written contract the plaintiff agreed (1) to unload, feed, water, and care for said live stock while in transit; (2) to release the defendant from any loss sustained in consequence of any delay, except the amount, if anything, actually expended by him in the price of feed and water for said live stock; (3) that the defendant should not be held liable for any damage to said live stock and cattle through heat or suffocation, whether caused by overloading in said car or not; (4) that said live stock were not to be transported within any specified time, nor delivered at any particular hour; (5) that the defendant should stop its car at any of its stations for water and feed where it had facilities for so doing whenever requested in writing so to do by the owner of said live stock or the...