82 Neb. 726 | Neb. | 1908
In December, 1905, plaintiff shipped over defendant’s railway a car-load of horses from Venango to York, Nebraska. In transit three of the animals were so injured as to cause their death, and the remaining 21 were, it is claimed, also damaged. Plaintiff recovered judgment for defendant’s alleged negligence, and defendant appeals.
1. Exception is taken to the instructions of the court that the alleged negligence of defendant in not properly bedding the car wherein the horses were shipped was an element in plaintiff’s cause of action. The horses were transported by virtue of a stock shipper’s contract, which provided, among other things: “And in consideration of free transportation for-persons, designated by the first party, who have indorsed their names hereon in the presence of the agent, hereby given by said railway company such persons to accompany the stock, it is agreed that the said cars, and the said animals contained therein, are and shall be in the sole charge of such persons, for the purpose of attention to and care of the said animals, and that the said railway company shall not be responsible for such attention and care. It is agreed that said
It is patent -from an inspection of the bill of exceptions that a considerable part of plaintiff’s loss can be traced directly to a lack of bedding in the car. Defendant argues that, by reason of the contract, and independent of it, the duty rested on plaintiff to bed the car; that, especially in the matter of shipping horses, because of the opinions of different shippers, it is impossible to adopt any method of bedding that would be uniformly satisfac
3. It is urged that the evidence does not tend to establish that the shipment was delayed, but, on the contrary, that the horses were transported in due course of carriage. The freight train left Yenango about 10 o’clock at night, remained several hours in Hastings, and arrived in Aurora about 9 o’clock the following night. It was necessary to switch the car from one train to another at the last named place. At Allen’s request the conductor of the Hastings train had telegraphed in the afternoon to Aurora to hold the Aurora-York train so as to include defendant’s car of stock therein. It was dark when the train arrived in Aurora, and some 20 or 30 minutes elapsed between the arrival of the Hastings and the departure of the Aurora train, and Allen, presuming that his car of stock had been switched into and made a part of said train, went into the caboose thereof, although his car of stock was left in the Aurora yards. It is also in evidence that the horses, other than those crippled, were unloaded at Aurora that night, and fed and watered the next day, and then reloaded about noon, so that they were on the track in the car for one-half a day, and not delivered in York for 24 hours later than they could have been if promptly transferred at Aurora. The evidence further tends to prove that the horses were in good condition when shipped at Venango, and gaunt and considerably bruised and marked up when unloaded at York. There was sufficient evidence, in our judgment, to warrant submitting this issue to the jury. Nelson v. Chicago. B. & Q. R. Co. 78 Neb. 57.
4. It is contended that the court improperly overruled defendant’s objections to testimony tending to prove the custom of defendant in bedding cars for the use of stock. Plaintiff’s right to recover on the cause of action set forth in the petition did not depend upon any custom or, usage, but upon defendant’s obligation to furnish him a car reasonably safe for the shipment of his horses. We are of opinion, hoAvever, that the evidence might be received as interpreting the intention and meaning of the parties in entering into the written contract, which was silent on this point. The testimony was undisputed that the car was unsafe for the shipment of horses in the condition in which it was delivered to plaintiff, and the evidence as to said custom was not prejudicially erroneous to defendant, eAren if it were irrelevant. Code, sec. 145.
5. Exception is taken to instruction numbered “4,” given by the court, which is as follows: “The court instructs the jury that, although they may believe from, the evidence that there-was a caretaker in charge of the stock transported by the defendant, still if you further believe from the evidence that the injuries to said stock, if any, were the result of the negligence of the defendant, and that said injuries were not occasioned or contributed to by the negligence of said caretaker, then the verdict should be for the plaintiff.” The instruction is not perfect, and the court should have qualified the reference to defendant’s negligence by restricting it to the allegations contained in the petition; but when this instruction is read in connection with the other instructions of the court on the same subject, it is not misleading or prejudicially
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.