St. Louis & S. F. R. Co. v. Shepard
| Decision Date | 09 December 1913 |
| Citation | 139 P. 833,40 Okla. 589,1913 OK 707 |
| Parties | ST. LOUIS & S. F. R. CO. v. SHEPARD. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 7, 1914.
Syllabus by the Court.
If in a common-law action to recover damages for the breach of a shipping contract, whereby defendant undertook to safely transport certain cattle within a reasonable time, it is shown that defendant failed to deliver the same in a safe condition within a reasonable time, a presumption of negligence arises, and the onus is upon the defendant to excuse itself from negligence.
Evidence examined, and, applying the rule, held, that the same was sufficient to take the question of negligence to the jury.
Where in a common-law action to recover damages for the breach of a shipping contract, whereby defendant undertook to transport certain cattle within a reasonable time, the evidence reasonably tends to show that defendant breached its contract by failing so to do, the same is sufficient to take the question of negligence to the jury, and the presumption of negligence is not explained or rebutted by positive evidence on the behalf of the defendant that the regular schedule of its stock trains would not enable it to deliver the cattle within a reasonable time.
Where defendant fails to comply with rule 25 (137 P. xi), and set forth the instruction complained of in totidem verbis, the alleged error of giving the instruction will not be considered.
Where a witness qualifies as an expert in the handling of cattle, his opinion that certain treatment within the issues contributed to the depreciation of the cattle is competent evidence.
Error from Murray County Court; Harry W. Fielding, Judge.
Action by H. B. Shepard against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
W. F Evans, of St. Louis, Mo., and R. A. Kleinschmidt and E. H Foster, both of Oklahoma City, for plaintiff in error.
J. B Thompson, of Pauls Valley, for defendant in error.
This is a common-law action to recover damages for the failure to deliver, within a reasonable time, certain live stock which plaintiff had delivered to defendant, a common carrier, to be transported for hire from Ft. Worth, Tex., to Kansas City Mo.; the alleged injury growing out of the shrinkage of the cattle and a decline of the market. After the fourth paragraph of the petition had been eliminated by demurrer, defendant answered, and set up two special contracts, and pleaded certain alleged exemptions therein contained to defeat the action. There was trial to a jury, and judgment for plaintiff, and defendant brings the case here.
As the plaintiff's right to recover depends upon his ability to show negligent delay on the part of the carrier, and as we need not cite authorities in support of the proposition that none of the provisions of the contract limiting the common-law liability of the carrier are available as a defense against its negligence, we lay the contracts out of the case.
It is first assigned that the court erred in overruling the demurrer thereto at the close of plaintiff's evidence. The contention is that the evidence was insufficient to take the question of negligence to the jury. There is no dispute as to the facts. The evidence discloses that on May 13, 1909, plaintiff, at Ft. Worth, Tex., notified defendant that he had six cars of cattle ready to ship over its road to Kansas City; that, pursuant thereto, defendant furnished cars, and the cattle were loaded at 5:45 that afternoon, and left Ft. Worth for their destination at 7:35 p. m., after a delay of 1 hour and 50 minutes. They arrived at Sherman, Tex., at 3:15 a m. the following morning, and, after a delay of 1 hour and 50 minutes, occasioned by the defendant's dispatcher erroneously reporting the arriving time of the train, in consequence of which defendant failed to call the train crew until after the train arrived in Sherman, they left Sherman at 5:05 a. m., arriving at Denison at 5:40 a. m. and at Francis at 11:10 a. m. There were three stops between Denison and Francis aggregating a delay of 1 hour and 10 minutes, exclusive of which the train averaged a little over 20 miles per hour. They left Francis at 11:45 a. m., after a delay of 35 minutes, for Sapulpa. Between those points there was an unexplained stop of 38 minutes at Weleetka, 50 minutes at Okmulgee, and another at Hamilton Switch. They arrived at Sapulpa at 5:50 p. m., consuming 6 hours and 5 minutes from Francis to Sapulpa, a distance of 101 miles, making an average of about 17 miles per hour straight running time, or, deducting the stops, an average of about 22 miles per hour. After a delay of 30 minutes at Sapulpa, the train left at 6:20 p. m. for Afton, a distance of 90 miles, arriving there at 11 p. m., making 29 hours and 15 minutes that the cattle were on the cars. There they were unloaded at about 1 o'clock the morning of the 15th and placed in a pen 80X120 feet, with a mud hole in the middle of it, located on the main street of the town, where people continually passed, causing the cattle to run back and forth through the mud hole, and where they were so crowded they could not lie down. At 7 o'clock that evening they were again loaded and permitted to stand in the cars until 9:30 p. m. before the train pulled out for Kansas City, where they arrived at 3:15 p. m., May 16th, the transit consuming 68 hours. The record further discloses that the plaintiff in writing had requested defendant to extend the 28-hour period for the cattle to be on the car without unloading to 36 hours, and that 36 hours was a reasonable time in which to transport them from the starting point to their destination. The cost of their feed at Afton was $21, which plaintiff paid. The cattle were sold on the market Monday, May 17th, 40 cents lower than was the market on which they would have been sold had they arrived within a reasonable time.
The undisputed facts disclosing, as they do, that 36 hours was a reasonable time in which to deliver the cattle at their destination, and that 68 hours was consumed in the transit, the delay was apparently unreasonable, and hence there was no error in the court holding, as it did, in effect, that the evidence was sufficient to make a prima facie case for plaintiff, and to take the question of negligence to the jury.
In St. L. & S. F. R. R. Co. v. Perry, 138 P. 1027, not yet officially reported, in the syllabus, we said: "If in a common-law action to recover damages for the breach of a shipping contract, whereby defendant undertook to safely transport certain cattle, it is shown that defendant failed to deliver the same in a safe condition within a reasonable time, a presumption of negligence arises, and the onus is upon the defendant to excuse itself from negligence." And this too whether the shipping contract was in writing or not. See, also, Bosley v. Baltimore, etc., R. Co., 54 W.Va. 563, 46 S.E. 615, 66 L. R. A. 871, where the court quoting approvingly from Elliott on Railroads, vol. 4, § 1483, says: ...
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