Worland v. Davis

• Decision Date: 26 February 1924
• Docket Number: 1082
• Parties: WORLAND v. DAVIS
• Court: Wyoming Supreme Court

223 P. 227

31 Wyo. 108

WORLAND v. DAVIS

No. 1082

Supreme Court of Wyoming

February 26, 1924

ERROR to District Court, Fremont County; RALPH KIMBALL, Judge.

Action by Charles H. Worland against James C. Davis, Agent of the President of the United States, for damages growing out of alleged negligence in the care and handling of a shipment of livestock. Judgment for defendant and plaintiff brings error.

Affirmed.

Messrs Brome & Hyde for plaintiff in error.

Upon the facts proven at the trial plaintiff was entitled to recover as a matter of law; the verdict is contrary to the Court's instructions; it appeared from the evidence that there was a congestion of shipments, but the evidence of stock congestion at the yards was insufficient to support the verdict. The pretended excuse for the carriers' failure to unload the stock at Long Pine was on account of an unavoidable congestion of stock at the yards. There is no evidence in the records sustaining a finding of that kind where under the law the evidence wholly fails to support the verdict and judgment, the same will be set aside. Fieldhouse v. Leisburg, 15 Wyo. 207.

P. B Coolidge, Wymer Dressler, Robert D. Neely and Paul S. Topping for defendant in error.

Plaintiff in error contends that defendant in error kept a shipment confined in cars beyond the 36 hour period, without feed, water and rest, without any good reason therefor, for about 7 hours; the evidence established the fact that the yards at Long Pine were congested with stock shipments, and that it was impossible to get plaintiff's sheep into the yards, before they were taken there. It was not a negligent delay and the jury in substance so found; plaintiff's testimony as to the condition of the shipment was not convincing; his corroborating witness had had no experience in the handling of sheep, the case was fairly tried and the verdict was amply supported by the evidence. There is no apparent reason why the verdict should be disturbed.

RINER, District Judge. POTTER, Ch. J., and BLUME, J., concur. RINER, District Judge, sitting in place of KIMBALL, J.

OPINION

RINER, District Judge.

The plaintiff in error Worland brought this action in the District Court of Fremont County against Walker D. Hines, Director General of Railroads. Thereafter, by stipulation, the name of the present defendant was substituted to meet the subsequent changes made officially in the office of Director General of Railroads.

The suit was instituted on account of alleged negligence in failing to unload and properly feed and water a shipment of stock which left Waltman on August 1st about five o'clock in the afternoon, billed to Fremont, Nebraska. The specific complaint was that the live stock train reached the town of Long Pine, Nebraska, on the Chicago & Northwestern Railroad, a railway then under the control of the Director General of Railroads, on the morning of August 3rd, 1919, and defendant did not, although the stock had been in transportation for thirty-six hours without feed or water, unload said stock so that the same might be properly cared for, and damage resulted. The usual contract of shipment was signed by the consignor, under which the time limit of twenty-eight hours for unloading, feeding and watering the stock prevailed, and the shipper also signed a request authorizing the extension of this time to thirty-six hours.

The defense was a denial of the acts of negligence, and allegations that the failure to unload promptly was due to a great and unusual congestion of live stock shipments at Long Pine. Trial was had to a jury, resulting in a verdict for the defendant; judgment was entered on the verdict and Worland brings error.

The only contention relied on by plaintiff in error to reverse the judgment is that the judgment is not sustained by the evidence, and so contrary to law. Other errors were assigned in the motion for a new trial, but, not being argued either by brief or orally, are waived.

Riordan v. Horton, 16 Wyo. 363, 94 P. 448;

Chicago, B. & Q. R. R. Co. v. Lampman, 18 Wyo. 106, 104 P. 533. 25 L.R.A. (N.S.) 217, Am. Cas. 1912C 788.

An examination of the evidence discloses that the sheep in question were confined in their cars between five and six hours beyond the thirty-six hour limit permitted under the contract of shipment and the written waiver. Concededly it became, therefore, the duty of the defendant in error to establish that it was not negligent in unloading the animals. This was undertaken to be done through the evidence of certain witnesses who testified in substance, on behalf of the defendant in error, that at the time the Worland sheep arrived and thereafter the stockyards, located somewhat over a mile west of Long Pine station, as well as the Long Pine yards, were so completely occupied by the cars of other shipments and trains that it was impossible to get the sheep of plaintiff in error unloaded sooner than was done.

More particularly, the conductor of the freight train, containing the sheep, testified that it arrived at Long Pine at 3:45 a. m. on August 3rd, 1919; that the train waited for an hour and one half partially on the load to the stockyards tracks and partially on the main line, in an endeavor to get in to the unloading tracks; that "as everything was blocked and full of cars" the train was unable to reach the unloading facilities, and, consequently, was moved down the main line to the Long Pine station and put on a side track there.

The stockyards foreman testified that the reason the Worland sheep were not unloaded sooner was because "it was a case of clearing the yards to make room for cars"; that the cars had to be reloaded before room to unload could be found; that the stockyards at Long Pine handled during the year 1918 11,525 cars of livestock, in 1919 16,824 cars, and during the week of July 28th to August 4th, 1919, 714 cars; that just prior to the time the Worland sheep train arrived 55...