273 F. 130 | 8th Cir. | 1921
The Merchants’ Live Stock Co. recovered a judgment against the Railway Co. as its damages to a shipment of 41 carloads of cows and calves from Avalon, N. Mex., to Kansas City, Mo. The cattle were driven in from the range 60 miles out in five days, held for a day in a nasture nearby, loaded into cars during the forenoon of October 25, 1917, left Avalon that afternoon and reached Kansas City on the morning of October 30th. Five calves and 66 cows in a total of 1,678 died in transit, or were left on the way as too weak to be reloaded, — some at Amarillo, the first unloading place, but the most of them, more than 50 head, at Strong City, where they were again unloaded for feed, water and rest. Two dead cows were left at Wellington and two or three were dead in the cars at Kansas City. The complaint charged that the loss was occasioned by slow speed of the train, long and needless stops, inadequate pens and facilities for feeding and watering at Amarillo and Strong City, failure to supply them with water, negligently loading after unloading, so that some cars were overloaded and calves unnecessarily separated from their mothers, jerking, jarring and roughly handling the train, all of which caused the cattle to be greatly weakened, trampled in the pens and in the cars, and those that were nof killed, crippled or abandoned on the way reached destination in an injured condition and shrunken in weight, thus decreasing their market value, and that if they had boen transported with reasonable diligence they would have been sold on a higher market than the one which obtained when destination was reached. The Railway Company denied these charges in its answer, and put in proof to show that the damages claimed were caused largely by the poor and weakened condition of the cows when they were loaded for shipment, by failure of the caretakers who accompanied the shipments to assist in unloading and reloading the cattle and feeding and watering them at Amarillo and Strong City, and also that a cold north wind accompanied with snow set in before Strong City was reached, which, together with the poor and weak condition o f the cows caused the large loss of them there. The season had been unusually dry, the range was not good, the cows were old and thin in flesh and were being shipped out for the purpose, in part, of leaving grass so that the remainder and better part of the herd could winter through. There were four caretakers with the shipment, including the general manager of the Live Stock Company, who had all been given transportation to accom
“And it is for you to say from all the evidence in this case bearing upon that point, whether or not, under all the circumstances as,they existed at the time, the use of reasonable diligence on the part of the caretakers and the means at their command required them to assist in the unloading, feeding, watering, resting and reloading the cattle at Strong City.”
The jury was instructed before argument, and the excerpt was added by the court after the. case had been partly argued. The defendant
“Q. How were the cattle unloaded by the people who unloaded then), just describe as nearly as you can how the cattle were handled in the cars and how in the yards by the men. A. They didn’t seem to know anything about stock. * * *
“XQ. You knew that the stock was suffering greatly by reason of not being unloaded more rapidly? A. Yes, sir.
“XQ. You knew the stock was suffering greatly by reason of the inexperience of these men in unloading the cattle? A. Probably so.”
They gave no assistance whatever in unloading, hut one of them testified that when it came to reloading, the railroad men were so inapt, did the-work .so poorly, and treated the cattle so badly that he finally went in and helped out. One element of damages insisted upon by the plaintiff was that feed for the cattle was put on the ground, and so many were crowded in a pen that they trampled it and did not eat it. Another ground was that some of them were not watered. One pen at Amarillo, and perhaps one at Strong City, had no watering trough. Some of them had racks for hay. One of the caretakers testified as to those subjects in reference to the stop at Amarillo:
“XQ. Why didn’t yon and the other parties put it (hay) in the racks? A. Because we had nothing to do with the feeding. rf * *
“XQ. Why didn’t you put the feed in the racks? A. I wasn’t supposed to. ® =5 •••
“XQ. You could have put the cattle in other pens and watered them? A. I had nothing to do with it.”
Counsel for defendant in error took the position in argument that the only duty of a caretaker is to get cattle up on their feet when they are down in the cars. We are not advised as to just why he makes that limitation, nor are we persuaded that the contention is sound. In view of the long practice, the statutory provisions and the terms of the bills of lading, we think there was a clear legal duty and obligation on the shipper to render such aid and assistance through the caretakers
Other assigned errors have been considered, but they are deemed to be without merit.
Reversed.