88 Neb. 268 | Neb. | 1911
The issues are fairly stated in defendant’s brief: “The petition in this action stated two causes of action. The first seeks to recover $250 damages to a shipment of horses from Norton, Kansas, to Palisade, Nebraska, March 25, 1906, and the second asks for $1,300 damages to a shipment of six horses and one jack from Orleans, Nebraska, to Palisade, Nebraska, March 23, 1907. In the first cause of action the charges of negligence are {a) negligent rough handling; (b) failure to unload for the purpose of water and feed; and (c) negligent delay. In
The reply denies every allegation of new matter contained in the answer, and alleges that no notice was ever brought to the attention of plaintiff as to any limitation contained in the purported- contracts between plaintiff and defendant; that plaintiff had no knowledge of any such limitations and did not in any manner assent thereto, and that such limitations are not effective as between plaintiff and defendant. There was a trial to the court and jury,, which resulted in a verdict and judgment, as above indicated, from which defendant appeals.
Defendant in its brief assigns six grounds for a re
1. “Damage due to inherent propensities of the animals.” It is argued that there is an exception to the rule of the carrier’s liability as an insurer which exempts it from responsibility for injuries so caused. The law unquestionably is as contended for by defendant, but the trouble is the facts in this case do not fit the law. There is an entire absence of evidence even tending to show that the injuries complained of were caused by the animals themselves or were the result of the nature or propensities of the animals. This point need not therefore be further considered.
2. “Delays.” Under this assignment defendant insists that the court erred in stating the issues to the jury, in that it stated plaintiff’s cause of action in substantially the terms of the petition, and objects to instructions 4 and 4 “continued,” for the reason that negligent delay was given as one of the grounds upon which the jury might find against the defendant. The evidence shows that the horses included in the first cause of action were loaded at Norton, Kansas, March 25, 1906, at 2 o’clock A. M.; that they were shipped as a car-load lot; that an employee of plaintiff, called a “caretaker,” accompanied the shipment. The car left Norton one hour later and arrived at Republican City at 8 o’clock the same morning. A regular freight train was scheduled to leave Republican City for McCook on defendant’s road at 9 A. M., but on this particular morning, upon arrival at Republican City, the caretaker was advised that the regular freight train for that morning had been annulled and an extra “run out at an earlier hour.” The result was that the shipment was delayed at Republican City for 12 hours and did not leave there until 8 o’clock of that evening, which was 11 hours later than it would have left if the regular morning freight train had not been annulled and the extra run out ahead of schedule time. The car reached McCook, a connecting point, at 8 A, M. the .next
3. “Unloading.” Defendant urges that the court erred in submitting to the jury the question of negligence on the part of the defendant in failing to unload and properly feed and care for the animals in transit, and that the court submitted this issue to the jury in both causes of action. It is argued that it was the duty of the caretakers, who were furnished transportation and accompanied the shipments for that purpose, to care for the animals in transit and see that they were properly unloaded, fed and watered; that, if they desired to unload at any point, it was their duty to request the carrier to set the car at the stock yards for unloading. The testimony upon this point offered by plaintiff was that, when the car, covered by the-first cause of action, reached Republican City, and again when it reached McCook, it was placed upon a side-track at points where the stock could not be unloaded. Witnesses testified that the defendant did not furnish plaintiff facilities for unloading, feeding and watering; but no witness for plaintiff testified that any request was ever made of defendant to change the location of the car, or to run it up to a chute where the
4. “Duty of the court to instruct the jury.” Under this head defendant’s brief states: “As already pointed out, the court submitted to the jury the issues of negligent delay and negligent failure to unload, when the record contains no evidence to sustain the plaintiff’s claims. It was prejudicial error on the part of the trial court to thus submit to the jury issues which there was no evidence in the record to sustain. * * *■ It was the duty of the court to instruct the jury as to the law without request, announcing the correct legal rules applicable to the facts in issue and setting out the material facts which the plaintiff must prove in order to recover.” This raises the question whether or not it was the duty of the defendant to request the court to charge the jury that defendant would not be liable for any failure to furnish facilities for unloading and feeding and watering unless requested so to do by the caretaker, or whether the court was bound to charge upon that point upon its own motion. We are inclined to take the former view and to hold that, by reason of defendant’s failure to request instructions upon this point, the error of the court discussed under point 3 was waived.
No complaint is made in defendant’s brief that the verdict of the jury is excessive, nor is any attempt made to justify the manner in which these shipments were handled by the agents in charge of defendant’s trains. There is ample testimony both by plaintiff and by disinterested witnesses that, in each instance, when the stock was shipped it was in good condition, and when it reached its destination the animals, without exception, were in bad condition. One had a gash four inches long over one eye; some of the others had the skin knocked off in places; the joints were badly swollen upon several; others had lumps upon them; the jack, when it reached its destination and was placed in the bam, was standing upon three legs. Several instances are related by the witnesses showing that, when those in charge of the trains were switching, they struck the cars containing plaintiff’s stock so violently as to knock the horses down, in one instance also knocked the caretaker down and put out his lantern; that in the first shipment that occurred twice while the car stood at Republican City; that in the second shipment, after one of these bumps, the caretaker went to the man in charge of another car in the train, and asked for assistance. The party appealed to accompanied him to his car, and testified that the 2 by 12 timber, which had been •spiked to the car as a partition between the jack and one. of the stallions, had been broken; that the rope around the jack’s neck,- by which he had been tied, was also broken; that the jack was lying upon his side under the stallion; that they got him out and got him up. The evidence as to the rough handling is very strong indeed, and the tes
Upon the whole record, we are all of the opinion that the judgment of the district court is right, and it is
Affirmed.