93 P. 664 | Wyo. | 1908
This action was brought in the district court of Sheridan County by the defendant in error as plaintiff against the
It is admitted in the pleadings that plaintiff in error is and was a railroad company operating a line of railroad at the time of the shipment of.the horses from Billings, Mont., to St. Louis, Mo., and a common carrier transporting merchandise and live stock for hire, and that it received a car load of horses from the defendant in error as such common carrier and undertook to transport them over its line to their destination.
There was conflicting evidence upon the question as to whether the car was overloaded or overcrowded. The jury, as seen by their special finding number one, found that it was not, and in view of the conflicting evidence upon that question such finding cannot be disturbed. The jury having so answered the first interrogatory, it follows that their second finding is correct, for if .there was no overloading or overcrowding of the stock in the car it is apparent that the injury to the animals cannot be attributed to that cause.
The evidence tended to show that upon the plaintiff’s application the company on the 16th day of October, 1905, furnished him a car on its side track and at its loading pen at Aberdeen, Montana, for the purpose of shipping a car load of horses from that point to East St. Louis. The car was loaded about eleven o’clock at night and shortly thereafter it was switched from the side track and attached to a freight train in rear of forty-seven car loads of lumber, and next forward of the caboose. The car had a broken draw-bar on the front end, and was coupled to the car in front by a chain, there being about eighteen inches of slack whch was not taken up by the chain. The train was equipped with air brakes, which were coupled on to the
Neither the owner nor anyone in his behalf accompanied the horses to care for them and attend to their needs between Aberdeen and Sheridan, and this fact was known to- the conductor who was in charge of the train. No contract of shipment was signed at the initial point nor at the time of delivery and acceptance of the horses by the company for transportation. The shipment, with the exception of the four head left at Sfieridan, was accompanied from that point by a Mr. Towns as agent for the shipper, and upon leaving Sheridan he signed a shipping contract as agent for his principal. The contract so signed pur
It was incumbent upon the .company to furnish a car properly equipped to safely transport the horses to their destination and it was liable for injuries resulting from a failure to do so. (5 Am. & Eng. Ency. of Law (2d Ed.), 432; 6 Cyc., 440.) It is conceded that the car which was furnished had a broken draw-bar, and it is not shown that the plaintiff was cognizant of that fact, nor was it his duty to inspect the car. (Union Pac. Ry. Co. v. Rainey, 19 Colo., 225; Mason v. Mo. Pac. Ry. Co., 25 Mo. App., 473; Gulf, &c., Ry. Co. v. Trawick, 80 Tex., 270; 5 Am. & Eng. Ency. of Law, 435.) According to the evidence on behalf of the plaintiff, there was eighteen inches of slack between the car in which the horses were and the next car ahead which was not taken up by the chain with which the coupling was made, and there was evidence tending to show that there would be more jarring and unsteadiness of the car by reason of such slack and consequently a greater tendency of the horses to get down in the car. and be trampled upon than if the car had been properly equipped in this respect. One of the witnesses for the defendant, who at the time was superintendent of the division of defendant’s railroad on which the injuries occurred, testified that any defect in a train might cause more jarring and that a defective draw-bar would be a serious defect.
The length of time consumed by the train in going from Aberdeen to Sheridan, a distance of forty miles only, and the delay in.reaching the latter point was properly before the jury as bearing upon the question of proper equipment.
Negligence per se was not shown, but there was evidence sufficient to go to the jury and, therefore, sufficient to sustain a finding of negligence. It was for the jury to say from all the evidence whether such negligence constituted the proximate cause of the injury to- the animals and by their special finding number four they found the proximate causes to be “bad order car and delayed train,” If th§ damaged car and the delay in transit increased the hazzard and risk of injury to the horses by getting- down and being-trampled upon, and injury also resulted in inability to unload the animals at an earlier hour, this court cannot say that the jury’s finding is wrong-. It would seem reasonable that the lpnger they were in transit and the consequent delay in getting those up which had fallen, together with the character and kind of animals, and their need of care and attention should all be taken into consideration in determining whether such delay contributed to- and was a proximate cause of their injury. This'was a question of fact for the jury to determine and we are of the opinion that the special finding number four is not contrary to the evidence, and that it is sustained by sufficient evidence..
It is contended that the verdict is contrary to law, and in support of this contention it is argued that the plaintiff was guilty of contributory negligence, in failing to- go or
The contract of shipment provided that the company should furnish free transportation for the owner or his agent to accompany the horses, and that he or his agent •should have sole charge of the car and horses, and that the company should not be responsible for such attention and care.
The evidence is that the plaintiff and a stock inspector, together with the train crew, loaded the horses at Aberdeen. The plaintiff testifies that after loading them he left the car and horses in charge of the train crew. The evidence of the conductor who was in charge of the train is to the effect that he knew he was not carrying anyone on the part of the plaintiff to care for the horses between Aberdeen and Sheridan.
The existence of the contract was one of fact and was admitted by the parties. The rights, duties and obligations created thereby were questions of law to be determined by the court. There was some evidence of a custom of stock-men .to accompany or send someone along to care for their stock while in transit, but the shipment was under the term's of an express contract, and the rights of the parties must be measured thereby. A custom to that effect and a failure to comply therewith was not pleaded. The jury by their answer to interrogatory number three stated that there was no evidence to show that it was the duty of the plaintiff to go, or have someone else do so, along with the- car of horses while same was in transit between Aberdeen and Sheridan to prevent his horses from falling or being trampled upon while in the car in such transit. This question, we think, is one of law and not of fact, and that it was, therefore, im
If the injuries to the horses were due solely to their vices and natural propensities, then the company was not liable therefor, but in order for this to be a defense it must appear that such vices or propensities constituted the sole proximate cause of the injuries. (5 Am. & Eng. Ency. of Law, 445.) It is true that the evidence shows that horses of this character are nervous Mid excitable, and would be more liable to get down in the car for the first hundred miles of the journey and that that fact was known to the shipper as well as the company. The jury did' not find that the natural propensities or vices of the animals was the sole proximate cause of the injuries, and upon the whole evidence it was for them to determine what the proximate cause of the injuries was (Gibson v. National S. S. Co., 8 Misc. Rep. N. Y. Super. Ct.), 22), and to have been the proximate cause, as a defense, the injuries must have occurred by reason of the natural propensities alone or in conjunction with some innocent cause (Chicago, &c., R. Co. v. Harmon,
2. It is urged in argument that the court erred in refusing to permit the defendant to show that it was the custom to attach carloads of stock at the rear end of the train. The motion for a new trial does not specify this ruling as a ground therefor, unless it be included in the general ground defined in the statute and alleged in the motion as “errors of law occurring at the trial.” The ground is too general and indefinite and upon the record it does not affirmatively appear that the specific question here argued was brought directly to the lower court’s attention. (Boburg v. Prahl, 3 Wyo., 325.) While it may have been argued and submitted to that court, the only way of showing that fact and presenting the question for review is by setting out and specifying in the motion the particular error and matter complained of. (Sec. 853, Elliott on App. Proc.)
3. It is assigned as error that the court erred in overruling the company’s motion for judgment on the special finding of facts.
The interrogatories were submitted to the jury to be answered and returned with their general verdict in pursuance to the provisions of Section 3656, Revised Statutes 1899. Section 3657, Revised Statutes 1899, is as follows: “When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”
4. The correctness of the instructions is not here questioned, mor is the right to recover the value of the horse which was lost from the car between Newcastle and Alliance seriously questioned. There was some conflicting evidence as to whether the horse was loaded with the others, but that was a question for the jury, and if so loaded the'condition of the door at the time the horse was found to be missing would be sufficient evidence to sustain the verdict on the ground of negligence on the part of the company in failing to furnish a car provided with a secure and safe door to prevent the horses from falling out or escaping. (Smith v. New Haven, &c., R. Co., 12 Allen (Mass.), 531; 90 Am. Dec., 166; Pratt v. Ogdenburg, &c., R. Co., 102 Mass., 557; Indianapolis, &c., R. Co. v. Strain, 81 Ill., 504; Betts v. Chicago, &c., R. Co., 92 Ia., 343; Central of Georgia R. Co. v. James, 117 Ga., 832; Root v. New York; &c., R. R. Co., 83 Hun, 111.)
5. It is urged that the damage awarded by the jury is excessive. The damage was variously estimated by different witnesses and the amount found by the jury was within the evidence and does not exceed the value placed upon the animals in the contract of shipment and to which value the plaintiff limited the amount of his recovery for injury to or loss of the horses while in transit. The argument upon this question seems to be that a recovery, if at all, must be for the value of the horse which was lost from the car, and that there was»no liability for damage for injury