Union P. Ry. Co. v. Rainey

• Court: Colorado Supreme Court
• Writing for the Court: HAYT, C.J., (after stating the facts.)
• Citation: Union P. Ry. Co. v. Rainey, 34 P. 986, 19 Colo. 225 (Colo. 1893)
• Decision Date: 04 December 1893
• Parties: UNION PAC. RY. CO. v. RAINEY et al.

34 P. 986

19 Colo. 225

UNION PAC. RY. CO. v. RAINEY et al.

Supreme Court of Colorado

December 4, 1893

Appeal from district court, Arapahoe county.

Action by Michael Rainey and Henry L. Allen against the Union Pacific Railway Company for damages for injuries to live stock. Judgment for plaintiffs. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by HAYT C.J.:

Action for injuries to horses while in transit from Kansas City to Denver, over defendant's railroad. Judgment for plaintiffs for $500. Defendant appeals. The plaintiffs, in their complaint, allege that defendant was a common carrier for hire, and as such received from plaintiffs 19 horses which, for a valuable consideration, it undertook to carry and safely transport to the city of Denver, in the state of Colorado; that defendant carelessly and negligently, without giving plaintiffs an opportunity to inspect the same furnished a car for the transportation of said horses, which was not suitable for the carriage of horses, and was defective and unsafe; that, as a result of defendant's negligence, said horses were damaged in the sum of $1,997. The first defense consists of a general denial. The second defense alleges that at the time of delivery of the horses to defendant, plaintiff Rainey was in possession thereof, and applied to defendant, as a common carrier, to transport the same to Denver, Colo.; that then and there a special contract was entered into between Rainey, acting for himself and his coplaintiff, and the defendant company, whereby, for a certain reduced rate, the defendant company was released from all liabilities not resulting from defective trucks, wheels or axles.

Teller & Orahood and C. M. Kendall, for appellant.

S. L. Carpenter, for appellees.

HAYT C.J., (after stating the facts.)

The negligence complained of as having caused the injury to the horses in question consisted in the defendant furnishing an unsuitable car, as it is claimed, for the transportation of the horses. The particular defect in the car pointed out is that the slats upon the side of the car were too far apart leaving the apertures so large as to permit the horses' feet to be protruded through the slats; that as a result of this defect the horses' feet were protruded between the slats, and, being unable to withdraw them, they were, as a result, thrown down, and trampled upon by the others. The testimony tends to show that, in the manner indicated, four horses received fatal injuries, while others were badly disabled. The evidence further shows that the car was so unsuitable for the transportation of horses that it was sidetracked by the defendant company at the station of Ellis, on the route between Kansas City and Denver, the horses removed from the car, and the car repaired, occasioning a delay of 24 hours, during which time the horses were exposed to a beating rainstorm, causing additional damage. The case was tried to the court without the intervention of a jury, and, while there is some conflict in the evidence, we must upon this review assume, in support of the judgment of the district court, that the facts alleged by the complaint were sufficiently established by the evidence. As to whether a railroad company transporting animals is to be treated as a common carrier, and not as the special agent of the owner, is a question about which much has been written, and some diversity of opinion exists. In earlier times, when the common law with reference to common carriers had its birth in England, there was in existence no suitable method of transporting live stock, and upon this is largely founded the doctrine of the English courts that railroad companies are not to be considered as common carriers of live stock. This doctrine has led to the announcement of similar conclusions by some of the courts in this country. However, we think the decided weight of authority and reason is in support of the opposite conclusion. In our judgment, no good reason can be found in support of the conclusion that railroad companies are common carriers of the innumerable articles received and transported daily, which does not apply to the transportation of live stock. In this country the live-stock business is one of the most important with which we have to deal. The boundless prairies of the west are the home of vast herds of horses, cattle, and other animals. For the support of this industry, a market for the stock must be found. This market is usually found in distant parts, where the country is more densely populated, and from the business thus furnished railroad companies derive a large part of their revenue. The rights and franchises which have been so freely extended to the railroad companies were upon the condition that they should be common carriers of passengers and merchandise, and we see no reason why an exception should be made against live stock. Mr. Hutchinson, in his excellent work on Carriers, as a result of a review of the authorities upon the subject, has made certain deductions, which are so tersely and cogently stated by the eminent author that we shall quote and adopt them, without undertaking, in this opinion, to analyze the authorities upon which they are based: 'The carrier of living animals as freight is therefore to be regarded as a common carrier as to such freight, and not as a special agent of the owner for their transportation, as has been sometimes contended. But, as the law has introduced by implication into every contract for the carriage of goods an exception to the carrier's liability in cases where the loss of them, while in his charge, has been occasioned by the act of God, or of the public enemy, or by their own decay from an inherent infirmity, or by the fault of the owner himself, so it has,...