95 Neb. 746 | Neb. | 1914
Lead Opinion
From a judgment of the district court for Furnas county in favor of plaintiffs for damages to a shipment of horses over defendant’s railroad, defendant appeals.
The petition alleges that on March 14, 1911, plaintiff delivered 25 horses in good condition to defendant at Wilsonville, Nebraska, for shipment to Bristolville, Ohio, the shipment to be over defendant’s road from Wilsonville to Chicago; that in conveying the horses defendant operated
Defendant’s first contention is that any injury received by the horses was largely due to the overcrowding of the car by plaintiffs; that such overcrowding will cause horses to become restless, and in the event of a horse “getting down” it is impossible to get him up again without unloading the whole car. When the car reached Wymore, one mare was down and being trampled by the other horses. At the request of an employee of plaintiffs, who was accompanying the shipment, the horses were unloaded and kept at Wymore about 24 hours, when they were again all loaded into the car. Before the train was ready to leave Wymore, the same animal was down again, and at the request of paintiffs’ employee the horses were again unloaded and held in defendant’s yards at Wymore another 24 hours, during which time the employee communicated with plaintiffs, and by their direction left this animal at Wymore and reloaded the other 24 horses. From that time until the end of the run there is no evidence of any further unusual delay. From this defendant argues that any delay in delivering the horses at their final destination was by
On this branch of the case defendant tendered its instruction No. 13, as follows: “The court instructs the jury, if you find from the evidence that the plaintiffs shipped a car-load of horses over the defendant’s railroad from Wilsonville, Nebraska, to Chicago, Illinois, and that, in loading said horses into defendant’s car at Wilsonville,, the plaintiffs negligently loaded more horses into said car’ than could be safely and properly transported therein between said places, and such overloading and crowding of said horses into said car contributed in causing the injury to said horses complained of in plaintiffs’ petition, then the plaintiffs were guilty of contributory negligence, and they cannot recover in this action, and your verdict should be for the defendant.” On this instruction appears the following notation by the court: “Modified by interlineation.” As a matter of fact the court modified the instruction by both erasure and interlineation. Section 4764, Ann. St. 1911, provides: “If the court refuse a written instruction, as demanded, but give the same with a modification, which the court may do, such modification shall not be by interlineation or erasure, but shall be well defined and shall follow some such characterizing words as ‘changed thus,’ which words shall themselves indicate that the same was refused as demanded.” The court modified the instruction by erasing the words “contributed in causing,” and by interlining the word “caused.” It is argued that this act constitutes reversible error. It is a matter of surprise that the court should thus modify an instruction in the face of such a statute; yet we would be reluctant to reverse a case on that ground, and would not do so un
In the second assignment it is urged that the horses were accompanied by a caretaker, and the general rule in such
In tbe third assignment it is contended that a common carrier is not an insurer against delay in the transportation of live stock, and Nelson v. Chicago, B. & Q. R. Co., 78 Neb. 57, is relied upon. We think this assignment is practically covered by what we have said as to the first assignment.
By assignment No. 4 it is contended that the court, by instructions 8 and 9, introduced an issue not presented by the pleadings. By this instruction the jury were told that a common carrier of freight in this state cannot, by a contract with the shipper, limit its liability. This issue was not raised by the pleadings, but counsel for plaintiffs contend that defendant forced it into the case by offering certain documentary evidence. As the case must be reversed on other points, it is unnecessary to decide this question, as it will not arise again on another trial for the reason that, as to interstate shipments, the supreme court of the United States, in Chicago, B. & Q. R. Co. v. Miller, 226 U. S. 513, has settled the law upon that point.
The fifth assignment is that the court erred in giving inconsistent and contradictory instructions. The record hardly justifies this contention.
The sixth assignment is: “In an action against a carrier for injury and delay in transportation of live stock, evidence of the market value of such stock at places other than the point of delivery is inadmissible.” The case seems to have been tried in the court below upon the theory that the contract of the defendant was to transport plaintiffs’ horses from Wilsonville, Nebraska, to Chicago, Illinois. While the petition alleges that plaintiffs delivered the horses to defendant at Wilsonville, Nebraska, for shipment to Bristolville, Ohio, said, shipment to be over defendant’s road from Wilsonville to Chicago, there is no evidence in the record that defendant made any contract with plaintiffs beyond the line of its own railroad. The contract introduced in evidence makes no reference to Bristolville, but gives the initial and terminal points at Wil
The seventh assignment is that, in an action for damages caused by delay, only such losses can be recovered as were reasonably contemplated by both parties at the time the contract of carriage was made as likely to arise from a breach, and not losses arising out of circumstances then wholly unknown to the carrier. Under this assignment defendant contends that plaintiffs could not recover anything upon the second cause of action, set out in their petition, viz., for damages by reason of having to readvertise a sale of the horses at Bristolville, Ohio, necessitated, as plaintiffs argue, by reason of the fact that through defendant’s negligence the horses did not reach that point in time for a sale which had already been advertised, and for which the horses would have been received in time had it not been for the negligent delay of defendant. There is nothing in the contract, or in the evidence, to show that defendant was notified at any time at or prior to its shipment of the horses that plaintiffs were shipping the horses to Bristolville for the purpose of disposing of them at a
The eighth assignment is misconduct of counsel for plaintiffs in his closing argument to the jury. We deem it unnecessary to consider this point, for the reason that counsel who represented plaintiffs, having been elevated to the district bench, will not have an opportunity to exercise his forensic powers upon the next trial of the case. Moreover, from what counsel for plaintiffs say in their brief upon this point, the language used in the closing argument was provoked by similar misconduct of counsel for defendant in his address to the jury.
The final assignment is that the verdict is not sustained by the evidence. In the particulars hereinbefore referred to, this is true. As applied to the claim that defendant operated its cars in such a negligent and careless manner as to injure the horses in transit, the evidence is quite conflicting. Such being the fact, the verdict of the jury would have to control npon that question.
For the errors above pointed out, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.
Dissenting Opinion
dissenting.
The majority opinion holds that the only method of proving the damage of the plaintiff by reason of the injuries complained of was to prove the market value of the horses at Chicago, at the time and in the condition in which they reached that place, and “their reasonable market value when and in the condition in which they should have been delivered.” The destination of the shipment was Bristolville, Ohio. The opinion assumes that the shipment was billed over the defendant’s road to Chicago only. The bill of lading does not appear in the abstract, and I think that it is immaterial whether the defendant billed