24 S.D. 611 | S.D. | 1910
The plaintiffs, who are purchasers and shippers of live stock, delivered to the defendant as a common carrier three car loads of horses to be transported by railroad to Chicago-, 111., and there delivered to J. S. Cooper, at the United States 'stockyards. Two car loads of said horses were -delivered to defendant at Tripp, S- D., January 4, 1907, and the o-ther car was delivered at Plankinton, S- D., on March 15th, the same year. The plaintiff claims that in the transportation and carriage of said horses the defendant 'so carelessly and negligently transported the same that h)' reason thereof said horses became bruised, maimed, and otherwise injured; that said negligence consisted in unnecessary and unreasonable delay, -and unreasonable and un
The first eight assignments of error relate to the sufficiency of the evidence to sustain the verdict. It will serve no useful
It is insisted by defendant that the evidence fails to establish the true and correct measure of damages, in that, it shows what the horses sold for sound, and what they were resold for, and this does not show how much less the animals would have sold for on the Chicago market at the time when received there by reason of their alleged damaged condition. Plaintiff A. C. Berry testified that he had been buying and selling horses for 20 years— about 400 to 500 yearly — and had shipped mostly to Chicago, that all these horses were sound when delivered to defendant, and that when received at Chicago they were gaunt, drawn, bruised, lame, and cut up. He testified what these horses, individually and separately, would have sold for if sound, and what they did sell for in their damaged condition; that after receiving them at Chicago he took good care of them, employing veterinary surgeons to treat and care for them, and that he was about two weeks in disposing of them. We -are of the opinion that what these horses
The defendant contends that the court erred in admitting in evidence, over defendant’s objections, plaintiff’s Exhibits B and C, being two letters written by plaintiffs to the claim agent of de
Defendant has 29 assignments of error relating to rulings of the trial court in sustaining and overruling objections to the introduction of evidence, and it would be impracticable to refer to each of these assignments separately. After careful consideration we are of the opinion that no prejudicial error exists therein.
The defendant contends that the court erred in instructing the jury of its own motion, relative to the broken car, that cars must be properly constructed and safe for shipment if they are to accommodate large and heavy horses. The instruction given by the court is as follows: “Now, gentlemen, in the transportation of live stock by a carrier, the cars that are furnished by the carrier for that purpose must be properly constructed, and safe and suitable for tlie. transportation of the stock offered for shipment; reference being had to the kind and character and value of such stock. That is, when a carrier takes live stock to ship, it must take into consideration the kind and character of live stock, and furnish a car that is safe and suitable for the transportation of that particular kind of stock. If it is large, heavy, strong horses, the car must be proportionately safe and strong. In other words, it would require a stronger and better car to transport large, heavy, strong horses than it would to transport, for instance, a load of sheep or hogs or calves. Every carrier must take notice of the fact that large, heavy, young, strong horses, or horses that are unbroken, require a stronger vehicle, a much more safe and sound vehicle in construction than it would some smaller or less powerful animal. They must, furnish a car which is suitable and safe for the transportation of that particular kind
Defendant also contends that the instruction was not appliable to the evidence in this 'case, for the reason that the contract under which the horses were shipped provided that plaintiff had seen and accepted the cars in which said horses were shipped. The plaintiff testified that the timbers and slats of the broken car were rotten and decayed, and that -such rotten and decayed condition of the car was covered over with paint, so that the unsound condition could not be determined by inspection. But we are of the opinion that this position is not tenable. Section 508, Hutchinson on Carriers, reads as follows: “As we have seen, the duty of furnishing suitable vehicles rests upon the carrier, and not upon the shipper, and the failure to discharge this duty is negligence from the consequences of which the carrier is not permitted to free himself by a stipulation in the bill of lading which devolves upon the shipper the duty of selecting vehicles which are suitable. Such a stipulation is void, as an attempt by the carrier to limit his liability against his own negligence in providing defective vehicles. But if the shipper freely and voluntarily chooses not to rely upon this absolute duty to furnish suitable vehicles, and takes upon himself for a sufficient consideration, in the form- of a reduced rate or otherwise,, the duty of selecting vehicles which are suitable for the goods he intends to have
The defendant requested the following instruction which the court refused: “If you shall believe from all the evidence in this cáse that the injury to the horses in the Tripp shipment was as likely to have been caused by the natural propensity of the animals to kick and to fight, if any such has been shown, as by the negligence of defendant, if any, then the plaintiffs are not entitled to recovery.” Defendant assigns the ruling of the court refusing this instruction as error. We are of the opinion that this instruction was properly refused, as it is nOt' applicable to . the evidence in the form in which requested. The last clause of thi instruction reads: “Then the plaintiffs' are not entitled to re covery.” Under rhe evidence in this case the plaintiffs might be entitled to recovery even if the jury had found in favor of defendant on the proposition presented by this instruction. The refused instruction was not properly qualified so as to restricl its operative effect to damages resulting only from kicking and biting of the horses composing the Tripp shipment. The other requested instructions of defendant were also properly refused.
It is also contended by appellant that under the terms of the special contract of shipment plaintiffs could only recover that proportion of the value, of the animals as declared in the special contract which ¡said value bears to the actual value of the animals injured; the value of said horses being, by the terms
Finding no error in the record, the judgment and order denying a new trial are affirmed.