Stillman v. Chicago, Rock Island & Pacific Railway Co.

Decision Date03 April 1923
Docket Number34840
PartiesC. J. STILLMAN, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
CourtIowa Supreme Court

REHEARING DENIED OCTOBER 16, 1923.

Appeal from Palo Alto District Court.--N. J. LEE, Judge.

ACTION to recover damages for delay in the shipment of certain carloads of stock. Verdict for the plaintiff, and defendant appeals.

Affirmed.

Soper & Soper, J. G. Gamble, and A. B. Howland, for appellant.

E. A and W. H. Morling, for appellee.

FAVILLE J. PRESTON, C. J., EVANS and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

On Saturday, the 3d of April, 1920, the appellee delivered to the appellant, at its station in Osgood, Palo Alto County, Iowa, 198 head of cattle, for transportation to Chicago. The cattle were accepted by the appellant for shipment. They were consigned to a live-stock commission company at the Union Stockyards in Chicago. A "live-stock contract" of shipment was executed by the appellee and the agent for the appellant. One of the provisions of said contract was that "the first party shall be exempt from all liability for loss or damage to the person or persons or live stock covered by this contract, caused by mobs, strikes, or violence from any source."

The cattle were loaded in eight cars. The loading was finished about six o'clock in the afternoon, and within about a half an hour thereafter the cars were attached to a regular stock train, for transportation to Chicago. Very shortly after the train had left the station at Osgood, the station agent received a telegram from the train dispatcher, advising him to hold the stock because of a strike in Chicago. At Emmetsburg, the carloads of stock were set out from the regular stock train on which they had started, and were returned to Osgood the same evening. Shortly after the agent was advised that the cars of stock had been set out at Emmetsburg, he got into communication with the appellee by telephone, and told him that the stock was being returned to Osgood; that there was a strike in Chicago; and that the cattle could not be taken there. Appellee went to the station that evening, and found that the train crew had unloaded four of the cars. The remaining cars were left on the sidetrack until the following morning, when the appellee unloaded the same and placed the cattle in a field near the station, where they stayed until Sunday night, when he brought them back, and placed them in the stockyards. He testified that the cattle were ready for market, and that he had no facilities to feed or care for them at that time. They were reloaded Monday morning, and billed to Kansas City, Missouri. A new shipping contract was made out and signed for this shipment. The cattle arrived in Des Moines about three o'clock Tuesday morning, April 6th, and were unloaded there and put in the pens and fed. They were reloaded, and arrived in Kansas City for sale on the market, April 8th. Damages are claimed for the failure of appellant to reasonably and properly transport and deliver the cattle at Chicago. It is claimed that there was a depreciation in the market, and that the cattle deteriorated by reason of the delay and matters incident to the shipment to Kansas City. The jury awarded a verdict of $ 7,315.63, which was reduced by the court to $ 6,613.57, for which amount judgment was rendered.

I. The appellee testified that "the yards were in very poor condition;" that "the train moved very slow;" that "it was heavily loaded, and couldn't make no time;" that "they [the cattle] were all gone, looked awful bad," and "their general appearance was not normal." Timely motions were made to exclude these several items of testimony, as being statements of an opinion and conclusion, and not statements of fact. Error is predicated upon the overruling of said motions.

The interrogatories that elicited the several answers above set forth were proper. The answers were in the nature of an expression of the conclusion of the witness. The subject-matter was such as to be difficult of description without some expression of a conclusion.

It appears in the record, however, that, as to the several matters above referred to, there was other and proper evidence in the record. The appearance and condition of the cattle were described in detail, as was also the condition of the yards, and the other matters referred to.

Strictly and technically, appellant's several motions to exclude the answers of which complaint is made, should have been sustained. However, upon the entire record, no prejudice could have resulted to the appellant by reason of the failure to strike this testimony. This is clearly a case where, upon the entire record, it must be held that the error complained of was without prejudice.

II. The appellee, as a witness in his own behalf, testified with regard to the prices obtained for the cattle on the market at Kansas City. In his testimony he referred to what is called "a sales sheet," which is identified in the record as Exhibit A.

Appellant insists that it was error on the part of the court to permit the witness to testify as to the classification that was made of the animals at the stockyards at Kansas City and the weights and prices obtained for the animals in the different classes, and to refer to the said Exhibit A in connection with said testimony.

It appears that the said exhibit was made by the commission firm that sold said animals, and was delivered to the appellee as an account and statement of the sale. The appellee accompanied the cattle to Kansas City, and was present and participated in the classification of the animals, as made at the time of the sale, and personally knew of the weights and prices at Kansas City. While he did not make the memorandum, Exhibit A, himself, he did have personal knowledge of the classification, weights, and prices as therein disclosed. He testified that, by referring to said Exhibit A to refresh his memory, he could testify in regard to said matters from his personal knowledge.

The appellee was an experienced buyer and shipper of cattle. There was no reversible error in permitting him to refresh his recollection from the sales account so made, and to testify with regard to his personal knowledge of the classification, weights, and values.

III. Instruction No. 2 is complained of. It is as follows:

"In the foregoing instruction I have set forth the matters in dispute between the parties to this action which you are required to decide. I call you attention again, however, to the fact that many of the matters which I have referred to are not in dispute, and the only matters which you are required to decide are those in dispute, which I especially submit to you in the instructions following."

Instruction No. 1 was a detailed recital of the issues as set forth in the pleadings of the parties. It is urged that Instruction No. 2 is inconsistent, because in the first sentence it states that the court has, in the preceding instruction, set forth the matters in dispute between the parties which the jury is required to decide, and in the second sentence says that many of said matters are not in dispute, and that the only matters which the jury is required to decide are those which are specifically submitted in the following instruction.

It must be conceded that Instruction No. 2 is not happily worded. Instruction No. 1, which preceded it, set out the claims of the parties to the action, as set forth in their pleadings. It refers solely to...

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