149 Iowa 650 | Iowa | 1910
The horses were shipped from Goodland, Kan., July 3, 1908, at 5 :50 p. m., billed to South Omaha via Lincoln. Upon their arrival at Lincoln July 6th at 12:45 a. m., the yards were inundated with water. Between 8:20 o’clock and 1:30 a. m. of that day, 3.86 inches of water fell, and this was increased to 5.7 inches by 6 o’clock. Between 10 o’clock in the forenoon and 12:80 p. m., 1.6 inches of water fell. Conditions were, such that it was impossible to unload the horses or move the train
We can think of no rule of law which will permit a carrier thus to abandon the carriage of freight which it has received for the purpose of transporting persons. The company had anticipated the exodus to Denver and planned for it during the month previous; but it continued to receive freight without notice to the shipper of its purpose to cripple that service and notwithstanding its knowledge that the withdrawal of more than one-half the freight crews would be likely to occasion unusual delays in the carriage of freight. Though a common carrier, which has equipped itself with sufficient facilities and appliances to enable it to transport the traffic which may be ordinarily expected to seek transportation over its route is not bound to provide in advance for extraordinary occasions for an unusual influx of business, and may refuse to accept goods owing to the unusual press of business, yet, if it accepts goods or stock without notice to the shipper of the circumstances or his assent, it cannot be heard to say that a delay is due to such a contingency. Hutchinson on Carriers (4th Ed.) section 496. That author lays down the rule that the carrier “must at his peril inform the shipper of the necessary delay, that the shipper may exercise his own discretion as to the propriety of making the shipment; and even though the delay may occur from such a cause upon a connecting route over which he has bound himself to carry the goods to destination, which may be known to him at the time of their acceptance, he is liable for' any unreasonable delay in the transportation, and such unavoidable difficulty, though wholly unknown and unanticipated, will not excuse him.” The principle is well stated in Russell Grain Co. v. Railway Co., 114 Mo. App. 488 (89 S. W. 908) : “When, at the time the shipper offers freight to the carrier, conditions exist that will prevent the delivery within a reasonable time, which means the time
That the horses were in good condition when loaded on the cars at Goodland is not controverted, but concerning their condition on arrival at South Omaha the evidence was in conflict; that of plaintiff tending to show that they were gaunt, weak, bruised, had lost about two hundred pounds each in weight, many of them lame, and that they were unfit for market, while that of defendant indicated that, aside from being gaunt, they were in salable condition. The issue so raised was for the jury to determine, as was also the extent of damages occasioned by the delay.