Thompson v. Davis
| Decision Date | 27 June 1923 |
| Docket Number | No. 22499.,22499. |
| Citation | 194 N.W. 434,110 Neb. 491 |
| Parties | THOMPSON v. DAVIS, DIRECTOR GENERAL OF RAILROADS AND AGENT. |
| Court | Nebraska Supreme Court |
“Where the carrier fed and watered the stock, the owner being present, and it appears that some of the stock was injured by reason of poison being contained in the hay fed to them, the hay being furnished by the carrier, held, that in such case the carrier is not an insurer of the stock against loss by reason of the poisoned hay, but would be liable only for negligence.” Starr v. Chicago, B. & Q. R. Co., 103 Neb. 645, 173 N. W. 682.
“When the carrier undertakes to feed and water stock notwithstanding a contract imposing this duty on the shipper, it is bound to exercise due care to see that the stock are given suitable food and water.” 10 C. J. 96, § 108.
Evidence examined, and held sufficient to sustain the verdict.
Appeal from District Court, Keith County; Tewell, Judge.
Action by Siebert M. Thompson against James C. Davis, Director General of Railroads and Agent. From a judgment for plaintiff, defendant appeals. Affirmed.C. A. Magaw and Douglas F. Smith, both of Omaha, and Thos. F. Hamer of Kearney, for appellant.
Geo. N. Gibbs and Wm. E. Shuman, both of North Platte, for appellee.
This is an action at law to recover damages for the loss of certain horses and injury to others, which plaintiff alleged was caused by negligence of defendant in feeding the animals certain timothy hay at McComb, Miss. The shipment originated at Paxton, Neb., a town on the line of the Union Pacific Railroad Company, destined for Amite, La., and consisted of two carloads of horses. The Union Pacific Railroad Company and the Director General of Railroads were named as defendants, the shipment moving over the Union Pacific Railroad and the lines of connecting carriers. Defendant by his answer admitted the shipment, but alleged that by the shipping contract it was the duty of the shippers, at their own risk and expense, to load, unload, care for, feed and water the horses while in transit. Defendant further alleged that the injury and damage resulted from negligence of plaintiff, and not from negligence of defendant. Issues were joined by plaintiff's reply, which alleged that defendant assumed to feed the horses and to provide feed and forage at McComb, Miss., and that defendant required plaintiff to pay for the feed. The lower court sustained the motion of the Union Pacific Railroad Company to be dismissed from the action. The trial resulted in a verdict and judgment for plaintiff in the sum of $2,677.44. Motion for new trial was overruled, and defendant appeals.
In this case among the most important issues is:
“Did the carrier know that the hay contained poison; or in the exercise of ordinary care, should it have known?”
This is the principal issue in the case, and “the burden is on the owner to show that the loss complained of was occasioned by the carrier's negligence.” With these two issues clearly defined we should have no trouble in disposing of the merits of this case and arriving at a correct conclusion. We should remember that:
Starr v. Chicago, B. & Q. R. Co., 103 Neb. 645, 173 N. W. 682.
This then adds another law question among those already quoted as to the issues to be determined in this case.
It is obvious from the record that plaintiff was the owner of the horses in question; that defendant, notwithstanding the ownership or any of the provisions of the shipping contract, undertook, as the facts appear, to feed the horses shipped for plaintiff. Then it follows and must be assumed that it guaranteed to feed these horses suitable food only and to take such other care of them as would be conducive to their good health. If in the course of the evidence it appears that defendant in feeding these horses was guilty of handing to them moldy, dusty and smutty hay, then it would be liable for the consequences, and if it failed to exercise proper caution in feeding these horses then it would be guilty of negligence. It must be conceded by the record that defendant knew from its moldy condition that the...
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