91 Neb. 229 | Neb. | 1912
Action in the district court for Cass county for damages to plaintiffs live stock and household furniture alleged to have been sustained by defendant’s negligence as a common carrier in transporting the property from Spencer, in Boyd county, to Cedar Creek, in Cass county, Nebraska. The defendant had the verdict and judgment, and the plaintiff has appealed.
It appears that the plaintiff chartered a box-car of the Chicago & Northwestern Railroad Company at Spencer, in which he placed his live stock, consisting of a stallion, a gelding, a pony, one cow, about 75 chickens, and some household furniture, and routed the car to Omaha, and thence over defendant’s railroad to Cedar Creek; that he was furnished transportation for one person to ride in the car as a caretaker, and his son assumed that duty under the contract of shipment. It also appears, without dispute, that the caretaker rode in the way-car, and paid no attention to the shipment until it arrived at Omaha. There is a conflict of evidence as to whether the son rode in the car and cared for the shipment from that point to
It was shown by the evidence that shortly after the shipment arrived at Cedar Creek the stallion showed signs of distress and illness, from which he afterwards died. There was some evidence tending to show that the other horses and the cow were bruised to some extent; that some of the chickens died, and that the furniture was also scratched and damaged. The caretaker testified that up to the time the car reached Plattsmouth all of the shipment was uninjured, and the live stock was in good condition. He also testified that while the car was in the yards at that place it was so roughly handled that the horses and cow were thrown down, and the furniture was damaged to some extent. His last statement was flatly
Tbe record also contains evidence from which tbe jury might reasonably have concluded that tbe illness and death of tbe stallion was caused by confinement in the car, lack of feed and water and want of proper attention on tbe part of the caretaker.
It is plaintiff’s contention that tbe district court erred in giving tbe jury paragraphs 3, 9, 13 and 14 of tbe instructions given on bis own motion. Tbe first three instructions complained of were alike in substance, and may be summarized by quoting paragraph 9, of which complaint is made. That instruction reads as follows: “You are instructed that tbe plaintiff must show by a preponderance of the evidence, before be can recover, that tbe proximate cause of tbe death of the plaintiff’s stallion and tbe damage to tbe other property in tbe car, if any there was, was the careless and negligent manner in which the defendant’s agents and servants switched and -handled said car and handled said property at Plattsmouth, and it is immaterial in what manner defendant handled the car at Plattsmouth, unless you believe that such negligent and careless handling at said place, caused the sickness from which the stallion died, and unless the plaintiff has shown by a preponderance of the evidence that said stock and personal property was injured on account of the rough handling of the car in which it was carried while it was being shipped, which was not ordinarily incident to the handling of cars so being switched and handled by engines, your verdict will be for the defendant.”
Counsel for the plaintiff concedes that the live stock in question was transported under a contract between the plaintiff and the defendant in charge of a caretaker or attendant, and that if by reason of his negligence or the natural propensities of the live stock, under the conditions in which it was surrounded, it injured itself, then
In Allen v. Chicago, B. & Q. R. Co., 82 Neb. 726, it was said: “The burden of proof to establish the affirmative of an issue involved in an action rests upon the party alleging the facts constituting that issue, and remains there until the end.” Union P. R. Co. v. Porter, 38 Neb. 226; Omaha, Street R. Co. v. Clair, 39 Neb. 454. “Where a pleader relies upon one or more specific acts or omissions as negligence, then evidence of any act or omission not within some of such specifications is irrelevant.” Omaha & R. V. R. Co. v. Wright, 49 Neb. 456.
In Cleve v. Chicago, B. & Q. R. Co., 77 Neb. 166, it was said: “In an action to recover damages from a carrier for injury sustained by. live stock in transit, which are accompanied by the owner or his agents, the burden is on the owner to show that the loss complained of was occasioned by the carrier’s negligence.” The opinion in that case makes a clear distinction between cases where the live-stock is committed exclusively to the care of the
Plaintiff admits this to fee the correct rule, for in 'his brief he says: “As to the transaction which took place in the yards at Plattsmouth, there is conflict in the evidence, and for the purpose of this appeal it must be assumed that the verdict of the jury of the nonexistence of negligence on the part of the railroad company was established.” This being conceded, and the jury having found against the plaintiff upon the only ground on which he could recover under his pleadings, and the plaintiff having tendered no request for an instruction stating his present theory of the case, he is not in a position to challenge the correctness of the instructions complained of.
Error is assigned for giving instruction 14, at the request of the defendant, which reads as follows: “You are instructed not to allow any damages to plaintiff on account of the pony, in this action.” An examination of tlie record discloses that a Mrs. Wooster, who testified for the plaintiff, stated that the pony belonged to her; that it was her personal property, and was bought by her own money; that the plaintiff had nothing to do with it in any way of ownership. There is no evidence in the record showing, or tending to show, that her claim had been assigned to, or was the property of, the plaintiff. Therefore the court did not err in giving that instruction.
Affirmed.