195 Iowa 1024 | Iowa | 1923
1. The plaintiff alleges, and his evidence tends to show, that the hog was delivered to defendant suitably crated, and was in good condition. The hog was unaccompanied by anyone representing plaintiff. The hog died in transit, and while in the custody and under the control of defendant company. There is a claim by defendant that the crate was not long enough; but there was a conflict as to this, which is settled by the verdict of the jury. Defendant denies generally, and says that it was in no manner responsible for the death of the hog; that the shipment was in hot weather; and that the death of the hog was due to its own acts and conduct and its own nature and pro
The trial court instructed the jury, in substance, after first stating what would be necessary for plaintiff to show, to make a prima-facie ease, that, if the jury should find by a preponderance of the evidence that the hog was in sound condition when delivered to defendant, and that it died in transit, then defendant was presumed to have been negligent, and if this was the cause of the injury, then plaintiff would be entitled to recover, unless such presumption was met by the defendant, as later instructed. Another instruction is to the effect that defendant claims that the shipment was made when it was very hot; that the death of the hog was due to its own acts and conduct and its own nature and propensities, or to conditions and causes over which defendant had no control; that defendant is not liable for the death of the hog if the same was due to any inherent vices or propensities of the animal shipped; that, if the jury should find by a preponderance of the evidence that the death of the hog was due to any inherent vices or propensities of the animal shipped, or to conditions and causes' over which defendant had no control, then the verdict should be for the defendant; that, upon the whole case, plaintiff must show that defendant was at fault.
Summarizing the instruction's, 4 and 5 state what is necessary to make out a prima-facie case for plaintiff; and in 6, the jury are told what defendant must show, and that, on the whole case, the burden is on the plaintiff. Plaintiff’s evidence was such as to make a prima-facie case and authorize a recovery, had the case then been submitted to the jury. "We shall see later that plaintiff’s prima-facie case was materially strengthened by other circumstances appearing in the record, some of which will be referred to later. We think the instructions are as favorable to the defendant as it was entitled to.
The general rule is that a carrier of goods is an insurer of the safe transportation of the goods committed to it for that
The route from Farson to Iowa City was northeast, on the Kansas City division, to Davenport, and from there west on the main- line to Iowa City. The hog was dead when the train reached Davenport, where a post-mortem was held by the representatives of the defendant company, and the hog was then taken to the rendering works. The plaintiff was not present, and had no knowledge of this until afterwards. Because of the time which had elapsed after the death of the hog, and before the post-mortem, the cause of death could not be determined from the post-mortem. The hog was so badly decomposed that the post-mortem would disclose nothing. The veterinarian testifies that in his opinion the cause of the death was that the crate was not long enough. This is the claim, or one of the, claims, of defendant, and that this was the fault of the shipper. As said, there was evidence to the contrary. Plaintiff’s testimony is that the hog and crate were billed at 150 pqunds, and that the hog would weigh about 125 pounds. The veterinary testified that, in his opinion, the hog which he saw, and upon which he held a post-mortem, would weigh 200 pounds. There is little, if any, evidence in the case tending to establish the claim that the death was due to vices of the animal. It is not as though there were a number of cattle loose in the car, one or two of which were vicious and inclined to horn each other,
There may be other circumstances which we have not enumerated. We arS not determining the fact questions, but reciting some of the circumstances which made it a case for the jury. It is very clear that, under the entire record, there was a jury question, and that the verdict has sufficient support.
Some of the cases relied upon by appellant are distinguishable in their facts. In one of them there was nothing in the evidence to indicate that the death of a horse might have been attributed to rough handling or to any want of care on the part
Though the rule as to live stock is somewhat modified, the principle is not to be extended so as to relieve a carrier from the duty to take notice of the ordinary weakness, character, and propensities of domestic animals, and to make such provision against loss or injury therefrom as may reasonably be done, in furnishing the means of transportation and providing for the protection of the property during transit.
As to the duty of the carrier where weather conditions arise during transit, see 4 Ruling Case Law 961. In the instant case, the weather was hot before the hog- was delivered to the defendant. Defendant accepted the hog for transportation under such conditions.
2. Appellant complains that the court erred in refusing to give certain instructions asked by the defendant. One of these is to the effect that defendant could not be held guilty of negligence because its employees failed to call a veterinary surgeon, and that it was not required to do so under the facts, and that the jury should find for the defendant as to this claim of negligence. Others are to the effect that defendant could not be held guilty of negligence because of the failure to remove the hog from the crate, or because of failure to remove the hog from the train; and that the jury should find for the defendant as to these claims of negligence. The plaintiff dicl not plead these matters as negligence, nor did he plead any specific grounds. He contented himself with pleading facts which would make a prima-facie case. The defendant alleged that it was without fault. In Ruebel Bros. v. American Exp. Co., 190 Iowa 600, 610, it was said:
“The jury could find that, the weather being warm, the hog was panting, fretting, and puffing to such an extent as to*1031 attract the attention of the employees of defendant, and to advise them that the condition of the animal was unusual; and yet nothing was done, except to water the animal, which watering was done but three times between Parsons, Kansas, and Dallas, Texas. It could be found that one messenger employed by defendant thought that the animal was probably in danger, and reported that- fact to the agent at Dennison, Texas, but that no one wired ahead for someone competent to deal with swine diseases, and that the animal was neither unloaded nor taken out of the crate, which, to all appearances, had become too small to hold it comfortably.”
As before shown, there was evidence in the instant case tending to show that the animal was not properly watered or provided with sufficient air. We are not so sure but that defendant should have done something of the kind indicated in the offered instructions, although these matters were not specifically relied upon by the plaintiff. The court covered the ground by the instructions given as to the duty of the defendant, and we think the court would not have been justified in peremptorily, and as a matter of law, directing the jury to disregard these matters, when considered in connection with all other facts and circumstances in the case. It was for the jury to determine, from all the evidence and proper inferences therefrom, whether defendant failed in its duty.
3. There are some minor matters that we should refer to briefly. It is thought- that the court erred in excluding evidence offered by the defendant through its witness Webb, the messenger, as to whether he placed the hogs so that they C01;1^ get &ÍB an<l whether the crates were so placed in the ear that the hogs could get plenty of air. We think the evidence was properly excluded. It called for a conclusion on the part of the witness. The size of the car, the place where each crate was put with reference to the doors, and that they were away from the wall, were gone into in detail, all the circumstances were shown, and the jury could as well determine as the witness whether they could get plenty of air.
4. The messenger described in detail the actions and conduct of the hog during its transportation, and at one point said
5. It is contended by appellant that the court erred in permitting evidence that the crate in question was in the express office at Iowa City at the time of the trial. The witness who testified that the crate was left at the rendering works in Davenport, and perhaps another witness, testified that they saw the identical crate in the defendant’s office at Iowa City at the time of the trial. We think this was proper. The plaintiff could doubtless have compelled its production, had he known of its presence in time. But plaintiff had been completely in the dark from the time the hog was delivered to the defendant until after the death of the hog. He was not present at the postmortem or at the measuring of the crate and of the hog, as testified to on behalf of defendant. Had the crate been produced in court, it could have been demonstrated as to the length of it. It is not very important either way perhaps, and yet there might properly be an inference drawn by the jury. In any event, there would have been no impropriety if either party had produced it in court; and surely, evidence that someone saw it in the depot in Iowa City could work no prejudice.
We shall not stop to consider other matters. We have examined the record, and reach the conclusion that no prejudicial error appears. The judgment is — Affirmed.