202 Ky. 75 | Ky. Ct. App. | 1924
Opinion op the Court by
Reversing.
On September 20, 1918, appellees (plaintiffs below), L. R. Harris and others, delivered to the Nashville, Chattanooga & St. Lonis Railroad Company at Pikeville, Tennessee, for shipment to themselves at Louisville, Kentucky, care Bourbon Stock Yards, six cars loaded with cattle and containing in all 155 head, whose average weight was 1,081 pounds. The total distance from Pike-ville to Louisville was about 366% miles and en route there were two junction points, one at Bridgeport, Tenn., 52 miles from Pikeville and the other at Nashville, Tenn., 127 mile from Bridgeport. The usual time for making the through trip, under ordinary circumstances and conditions, was, according to the proof, between 28 and 33 hours; but, excluding a stop at Bowling Green, Ky., for feeding and watering the cattle, the time consumed in this shipment was between 38 and 40 hours, and there was a delay of about 12 or 13 hours at Bowling Green although the federal statute providing stops for the purpose requires a minimum one of not less than five hours.
This action was originally filed by plaintiffs -against the Nashville, Chattanooga and St. Louis Bailway Company and the Director General of B-ailroads seeking a judgment against defendants for $812.05 because of the nonmarketable condition of the -cattle on Monday, September 23, which the proof shows was the best market day of the week; for $625.30 extra loss in weight, and $177.00 for extra feeding due to the delay in shipment. An amended petition eliminated the railroad corporation as a defendant and confined the prosecution of the action against the director general only. The answer was a denial of all the allegations in the petition with an affirmative paragraph averring that the loss sustained by plaintiffs, if any, was due to their overcrowding the cars in which the cattle were loaded, or to weather conditions or from the inherent nature and propensities of the animals themselves. The reply denied the averments of that paragraph of the answer, and upon trial there was a verdict and judgment in favor of plaintiffs for all of the amount sued for except $48.00 as a part of the extra feed bills, which-the court in its instructions disallowed, and complaining of that judgment the director general prosecutes this appeal, complaining chiefly of the instructions of the court, and that the amounts of the items recovered are not sustained by the evidence and are flagrantly against if.
It was proven by plaintiffs that before the cattle were removed from the farm they weighed 169,245 pounds and that their total sales weight on the respective days upon which they were sold, extending, as we have
Moreover, an instruction was offered by defendant to the effect that the delay caused by the stop for watering and feeding the cattle at Bowling Green could not be taken into consideration in establishing negligent delay in transportation, and without stopping to determine whether that instruction was technically correct, it became the duty of the court after it was offered to submit that phase of the case to the jury under a proper one. In combatting that contention plaintiffs’ counsel urge that the delay at Bowling Green was rendered necessary through defendant’s negligence in not arriving at Bowling Green sooner and in time to complete the trip within the 36 hours, which, as an abstract proposition, is true, but the error in it lies in the fact that counsel assumes negligent delay before arriving at Bowling Green. Such an instruction should be given but it should be predicated on the fact that there was no unreasonable delay before reaching Bowling Green, for if there was none then it was the duty of the defendant, under the federal statute, to unload the cattle for feeding and watering.
Again, the court in instruction number 1, given to the jury, said that if the cattle, when delivered to defendant, were “in good physical and merchantable condition, and were delivered to the consignee at the Bourbon Stock Yards in Louisville, Ky., in damaged or unmerchantable condition, the law is for the plaintiffs on this item, and you should so find,” unless the jury found that the ‘ ‘ damaged or unmerchantable condition was due solely to the inherent nature and propensities and vice of the animals themselves,” in which latter event the verdict should be for the defendant. That instruction, according to our interpretation, does not embody the law as applicable to the proven facts. It makes the carrier an insurer as to prompt transportation when, under the law, the liability of the carrier .as an insurer is applicable only to a failure to deliver the shipment intact and uninjured as it was when received. In other words, it applies to a total or pro t-anto destruction or loss of the freight in the form of injuries arising from rough handling, and as applied to animate freight (live stock) to a physical injury to them or destruction to the lives or loss of any of them. But the rule in that case does
It will be seen that the delay for which the carrier is’responsible is a “negligent prolongation of-the transportation,” which is by no means the assumption of the high duty of an insurer, and in view of the law measuring the duties of the carrier in such cases we are forced to the conclusion that instruction number 1, as we inter
Upon the whole ease, we are convinced that a new trial should be granted, and the judgment is reversed with directions to sustain the motion and for proceedings consistent with this opinion.