Estes v. Denver & R.G. R. Co.

• Decision Date: 05 December 1910
• Citation: 49 Colo. 378,113 P. 1005
• Parties: ESTES et al. v. DENVER & R. G. R. CO.
• Court: Colorado Supreme Court

113 P. 1005

49 Colo. 378

ESTES et al. v. DENVER & R. G. R. CO.

Supreme Court of Colorado

December 5, 1910

On Petition for Rehearing February 6, 1911.

Error to District Court, Mesa County; Theron Stevens, Judge.

Action by Lewis S. Estes and others, partners as the Webster City Cattle Company, against The Denver & Rio Grande Railroad Company. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

Henry R. Rhone and Rogers, Shafroth & Gregg, for plaintiffs in error.

E. N Clark, W. R. King, J. G. McMurry, and Richard Pette, for defendant in error.

GABBERT J.

The judgment of the district court must be reversed, but all questions urged upon our attention, which can readily be eliminated by amending the pleadings before another trial, will not be considered, and we shall therefore limit our decision to such questions as are necessary to guide the parties when the case is retried.

The individuals doing business under the firm name of the Webster City Cattle Company delivered to the Rio Grande Western Railroad C mpany, at Thompson Station, in Utah, 824 head of cattle in 20 standard gauge cars, billed and routed via the Denver & Rio Grande Railroad Company to Denver, and from thence over the Burlington & Missouri River to the city of Omaha, Neb. The cars were delivered by the Rio Grande Western Railway Company to the Denver & Rio Grande Railroad Company at Grand Junction. Thereafter the shippers brought suit in the county court of Mesa county against the Denver & Rio Grande Railroad Company to recover damages, alleging in their complaint that this company negligently delayed the transportation of the cattle over its road to the city of Denver by running the train on which the cattle were shipped at an unusually slow rate of speed; by negligently refusing the use of yards along its line where the cattle could be unloaded, watered, and fed; by keeping the cattle in the cars in which they had been shipped from Thompson Station for nearly 48 hours without water or feed, causing the cattle to greatly shrink in flesh; by negligently and without cause side-tracking the train at various side tracks on its line of road for hours at a time; and by negligently attempting to pull the train by defective motive power, and by using defective cars and engines. It is then alleged that by reason of these negligent, careless, and wrongful acts of the defendant 18 head of the cattle died, and the balance greatly depreciated in value; that plaintiffs were compelled to pay a feed bill of $102 for the feeding and care of their cattle at Pueblo; that by delaying the transportation of the cattle the market price thereof declined from 25 to 50 cents per 100 pounds between the time when the cattle should have reached the city of Omaha and the time when they did actually reach the market at that place and were sold; and that by reason of these various alleged negligent and wrongful acts the plaintiffs were damaged in the sum of $2,000.

As a defense, the defendant answered that it received of the plaintiffs the cattle mentioned in the complaint under three certain contracts entered into with the plaintiffs, partly printed and partly written, all being identical in form, and the contents of which were the same, with the exception that one of the contracts covered the transportation of cattle in eight cars and the other two covered the transportation of cattle in six cars each. A copy of the contract as set out in the answer, so far as necessary to consider, is as follows:

'Whereas, the said the Denver & Rio Grande Railroad Company as a common carrier engages in the transportation of live stock from Thompson Station to South Omaha Station and transports such live stock at a lower rate per car carried at owner's risk, and at the valuations hereinafter stated and upon the conditions hereinafter set forth, than it does in the absence of such assumption of risk and an agreement of value and as to conditions; and

'Whereas, the party of the second part has requested the said the Denver & Rio Grande Railroad Company to transport the stock hereinafter referred to at its reduced rate and subject to the terms and conditions hereinafter stated.

'Now, in consideration that the party of the first part will transport for the party of the second part six car loads of cattle of the agreed value of thirty dollars per head from Thompson Station to Denver Station at its reduced rate, being, to wit, at the rate of ninety-five dollars per standard car load, the said party of the second part hereby covenants and agrees as follows: * * *

'(2) That the value of said live stock at the place and date of shipment does not exceed * * * for cattle, thirty dollars per head. * * *

'(3) The said party of the second part hereby further agrees to accept, and does accept, for the transportation of said live stock the cars provided by the said company, and used by it for the shipments of stock, and assumes all risk of injury which the animals or either or any of them may receive in consequence of any thereof being wild, unruly, weak, or by reason of maiming each other or themselves, or in consequence of heating or suffocation, or by reason of other ill effects of being crowded in the cars; or on account of injury by the burning of hay, straw, or other material used by the owner or shipper or his agent for feeding the stock, or otherwise. And also all risks of damages which may be sustained by reason of any delay in transportation, and all risk of escape of any portion of such stock, and hereby releases the said company from any liability for loss or damage to such stock or animals from any other cause or thing, not resulting from the negligence of the party of the first part. * * *'

'(7) The party of the second part covenants and agrees that as a condition precedent to his right to recover any damages for loss or injury to such stock, he will give notice in writing of his claim therefor to some officer of the party of the first part or its nearest station agent, before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same to the party of the second part, and before said stock is commingled with other stock.'

For replication the plaintiffs admitted that the contracts were made and entered into by and between them and the defendant as set out in the answer, and alleged that, in accordance with the terms thereof, 'due notice in writing and verbally was given to the officers and station agents of the defendant company of plaintiffs' claim for damages to said cattle at and before the same were commingled with other stock, and the defendant promised and agreed to pay plaintiffs' claim for damages.'

The trial of the case in the county court resulted in a verdict and judgment for the plaintiffs, from which the defendant appealed to the district court. In the latter tribunal the plaintiffs tendered an amended complaint, the purpose of which was to increase the ad damnum to the sum of $3,500, and asked leave to file same, which was denied. Thereafter the case came on for trial before the court and a jury on the pleadings filed in the county court. At the conclusion of the testimony on the part of the plaintiffs, the defendant interposed a motion for nonsuit, based substantially upon the grounds that, by the pleadings and evidence, the action was brought to recover on the common-law liability of defendant as a common carrier, when it appears from the pleadings in the case that the cattle involved were shipped under special contract limiting such liability; and for the further reason that under such contract the plaintiffs covenanted and agreed that, as a condition precedent to their right to recover damages for any loss or injury to their stock, they would give notice in writing of their claim therefor to some officer of the railroad company, or its nearest station agent, before the stock was removed from the place of delivery, and before it was commingled with other stock, and it appears from the evidence that no such notice was given in the time and manner as required by the contract. This motion was sustained, and a judgment of nonsuit entered, from which the plaintiffs appealed to this court; but, as we are without jurisdiction to entertain the appeal, we have directed that the case be entered as pending on error, and will consider it accordingly. Such further matters as are necessary to consider in passing upon the questions we shall determine will be stated in the course of the opinion.

The first question relates to the action of the trial court in refusing leave to file the amended complaint increasing the ad damnum to $3,500. The jurisdiction of county courts, except in matters relating to the estates of deceased persons, is limited to suits where the debt, damage, or claim, or the value of the property involved, does not exceed $2,000; and, in order to give these courts jurisdiction of such actions, it must appear from the pleadings that the subject-matter of controversy is within the jurisdiction fixed by the statute. Sections 1526-1527, Rev. St. 1908; sections 1054-1055, 1 Mills' Ann. St. The statute further provides that appeals may be taken to the district court from all final judgments of the county court, except judgments by confession. Section 1536, Rev. St.; Section 1085, Mills' Ann. St. (except as provided in section 1541, Rev. St.). It also further provides that, 'in all appeals provided for in the foregoing section, the proceedings in the appellate court shall be in all respects de novo.' It further provides: 'Said appellate court shall consider and pass upon all objections to the pleadings and proceedings in the said cause which may have been made in the county court, and...