Wente v. Chi., B. & Q. Ry. Co.

• Decision Date: 24 May 1907
• Docket Number: No. 14,650.,14,650.
• Citation: 79 Neb. 175,112 N.W. 300
• Court: Nebraska Supreme Court
• Parties: WENTE v. CHICAGO, B. & Q. RY. CO.

79 Neb. 175

112 N.W. 300

WENTE

v.CHICAGO, B. & Q. RY. CO.

No. 14,650.

Supreme Court of Nebraska.

May 24, 1907.

Syllabus by the Court.

When facts are disclosed from which it appears that an animal has not suffered through the neglect of a carrier intrusted with its transportation, the rule that proof of the receipt of animals by a carrier in good order and delivery at destination in bad order makes a prima facie case of liability against the carrier has no weight as against such facts.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Lancaster County; Holmes, Judge.

Action by Lewis N. Wente against the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.J. W. Deweese and Frank E. Bishop, for appellant.

Halleck F. Rose and Wilmer B. Comstock, for appellee.

JACKSON, C.

The plaintiff had judgment for the value of a stallion, which it is charged died through the neglect of the defendant in transportation. The substance of the complaint is that the plaintiff delivered the stallion to the defendant in the city of Lincoln to be transported to Mexico, Mo., on a fast train due to leave Lincoln at 6 o'clock p. m. on December 14, 1904; that by direction of the defendant the stallion was loaded into the car at 5 o'clock p. m. of that date, but through defendant's neglect the car was not attached to the train leaving Lincoln at 6 o'clock p. m., but was detained in the yards until 10:45 o'clock p. m. of that date, when it was attached to another train and was delayed in transportation so that it did not reach Kansas City, Mo., until about 5 o'clock a. m. of December 16th; that the defendant negligently and unlawfully failed and refused to unload the horse to be rested, fed, and cared for during the entire journey from Lincoln to Kansas City, and kept the horse confined in the car on board the train for 49 hours and 10 minutes; that by reason of this neglect the horse took cold and became sick; that the weather was warm when the horse was loaded at Lincoln, but became cold on the 15th, and along the route to Kansas City continued to grow colder, with cold wind accompanied by rain and snow; that about noon of December 16th the plaintiff, through his employé, notified the defendant at its freight office in Kansas City that the stallion was sick, and requested that the horse be unloaded that it could be given medical attention; that the defendant was advised that the animal was a valuable stallion and was contracting pneumonia, that it needed immediate medical attention which could not be properly given while the animal was detained in the car, but that the defendant negligently and carelessly kept and detained the animal on board the car in its yards in the increasing cold and storm until 7:10 p. m. of the 16th, although frequently requested to place the car so that the animal could be unloaded; that if the defendant had delivered the car to a platform to permit the horse to be unloaded within a reasonable time after being requested so to do its life could have been saved by proper medical treatment. The appeal involves the sufficiency of the evidence to sustain the judgment.

J. R. Jones, an employé of the plaintiff, accompanied the animal as a caretaker, and it is disclosed from his testimony that the horse was shipped in a box car suitable for the purpose. He provided bedding, hay, and grain for the journey, and personally attended to furnishing the horse with water. There is no dispute that a horse might be confined in a car during a journey of from a week to 10 days without danger on account of confinement alone, if otherwise well cared for. There was no request that the horse should be unloaded en route, and no evidence that his condition required it. When facts are disclosed from which it appears that an animal has not suffered through the neglect of a carrier intrusted with its transportation, the rule that such carrier is an insurer of animals transported over its line, and that proof of the receipt of animals by a carrier in good order and delivery at destination in bad order makes a prima facie case of liability against the carrier, has no weight as against such facts. The claim of liability on account of delay in shipment and en route should therefore...