95 P. 1132 | Kan. | 1908
The opinion of the court was delivered by
L. R. Wright recovered a judgment against the Atchison, Topeka & Santa Fe Railway Company of $206.35 for losses arising from the negligent shipping of cattle over the defendant’s railroad. It was based on two causes of action, one for damage resulting from a negligent shipment in April, 1904, from Emporia to Kansas City, and another in February of the same year, between the same places.
As to the April shipment, it appears that a car-load of plaintiff’s cattle was in a wreck’, which resulted in breaking the leg of one animal and in bruising the other cattle, -as well as in the loss of market by reason of delay in transportation. The shipping contract contained a provision that before a recovery could be had for loss or injury to the cattle during transportation the shipper should give a written notice to an officer of the company, or the nearest agent, before the removal of the stock from the place of destination or before they were intermingled with other stock. Formal notice was not given of the loss occasioned- by the negligence of the company in the April shipment before the sale of the cattle, and it is contended that no recovery can be had. A formal written notice of the loss sus
As to the February shipment, written notice was not given as to the losses sustained, but as to the one item of $51.93 for loss of market no notice was essential. Loss in weight because of extra confinement was the other item of loss, and was fixed by the jury at $42.27. From the averment in the petition, as' well as from, the evidence, it seems that this loss was due, at least in part, to delay in transportation. Shrinkage in weight because of the unnecessary length of time the cattle were on the road to market would be an injury during transportation, and hence would come within the pro
The objections to rulings on the admission of testimony are not deemed to be material, nor is it nécessary to consider further the objections to the instructions.
The recovery on the first cause of action of $113.15 is affirmed, but the judgment so far as it is based on the second cause of action will be reversed, unless the defendant in error shall remit $42.27, the item of loss found by the jury to have been caused by the extra confinement of the cattle; and, if that is done, judgment for the remaining item of $51.93 damages found to have resulted from the loss of market will be affirmed.