Wichita & W. Ry. Co. v. Koch

• Decision Date: 06 February 1892
• Citation: 47 Kan. 753,28 P. 1013
• Court: Kansas Supreme Court
• Parties: THE WICHITA & WESTERN RAILWAY COMPANY v. GUSTAVE KOCH

28 P. 1013

47 Kan. 753

THE WICHITA & WESTERN RAILWAY COMPANY v. GUSTAVE KOCH

Supreme Court of Kansas

February 6, 1892

Error from Sedgwick District Court.

ACTION by Koch against the Railway Company, to recover for the injury to and loss of certain hogs. Judgment for plaintiff June 8, 1889. The defendant brings error. The opinion states the facts.

Judgment reversed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

Sankey & Campbell, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This action was brought by Gustave Koch against the Wichita & Western Railway Company to recover damages for the injury and loss of certain hogs, which the railway company undertook to carry from Cheney to Kansas City. It was alleged that a car-load of hogs was shipped on January 7, 1886, and that through the negligence of the company 18 of the hogs died, two of which were left at Wichita, and were a total loss, and that 16 of the dead hogs were delivered in Kansas City, but were of but little value; and that by reason of the death of the hogs Koch was damaged in the sum of $ 125. It was further alleged, that through the negligence of the company the hogs were greatly delayed in transportation, and were negligently handled, so that many of them were so frozen and injured as to depreciate them in value, in consequence of which there was a loss of $ 100. It was further alleged, that by the delay of the company in transporting the hogs there was a decline in the market price of the same, to the damage of the shipper of $ 25. A further claim of damages was made upon a shipment of stock in 1887; but there was no competent testimony given upon this claim, neither was there any allowance made by the jury for the same in their verdict, and it may be laid out of consideration. The jury returned a verdict in favor of Koch for $ 201.65, and the special questions submitted and answered show that $ 175.15 of that sum was allowed for the hogs frozen to death, and $ 26.50 of it for the shrinkage of the remainder from cold and suffering on the route. The testimony tended to show that the hogs were loaded and started to Kansas City on January 6, and that soon afterward it became very cold and began to snow, so as to blockade the railroad and delay the train on which the hogs were being carried. The storm and cold increased in severity, and continued for several days. After considerable effort the hogs were delivered to the agents of Koch at Kansas City on January 13. They were then in bad condition; 16 of them were dead, two had been left on the way, and others were badly frozen and injured. They were sold and delivered to the packers in Kansas City on the day of their arrival. The shipping contract made between Koch and the railway company provided, among other things --

"That, as a condition precedent to his right to recover any damages for loss or injury to said hogs, he will give notice in writing of his claim therefor to some officer of said 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 said party of the second part, and before such stock is mingled with other stock."

on this stipulation the court instructed the jury as follows:

"Before you can find for the plaintiff, he must show by the greater weight of the evidence that the plaintiff notified the defendant in writing of the loss or injury to said stock before said stock was moved from the yards, or from the place of delivery, or before such stock was mingled with other stock."

No notice was given before the sale and delivery of the stock to the packers at Kansas City, nor was there any notice given until January 25, 12 days after the hogs had been disposed of. The instruction given by the court with reference to the giving of a notice must be taken as the law of the case. Not only that, but it has been held that such a stipulation or contract is reasonable, just, and valid. (Goggin v Railway Co., 12 Kan. 416; Sprague v. Railway Co., 34 id. 347.)...