274 Pa. 272 | Pa. | 1922
Opinion by
On March 21, 1917, at Eureka, Illinois, J. T. Gould consigned to Karnofsky Brothers, plaintiffs, twenty horses, to be delivered to them at Wilkes-Barre, Pa.; the shipment was on a live stock contract, in the usual form, which expressly provides that no carrier shall be “liable for loss, damage or injury not occurring on its own road or its portion of any through route, nor after said live stock has been delivered to a connecting carrier, except as such liability may be imposed by law......, nor for any loss, damage or delay not caused by the negligence of the carrier, and such negligence shall not be presumed but must be established.” The horses arrived in a bad physical condition, and several of them died after a few hours.
The present suit for damages was brought against the terminal carrier. The court below tried the case on the theory, and expressly so instructed the jury, that it was “sufficient to hold defendant, the ultimate carrier, for negligence, if plaintiff proves negligence anywhere along the line.” Judgment was entered on a verdict for plaintiff and defendant has appealed.
The erroneous instructions to which we have called attention require the granting of a new trial, but appellant asks greater relief; it claims no evidence was pre
Evidence was introduced tending to show the following facts: The horses were in good condition when shipped; they were delivered to defendant on March 26, 1917, at 8:15 p. m., and remained in its charge until about eight o’clock the following morning; when delivered to plaintiffs, the horses appeared to be in a starving condition ; their manes and rope halters were chewed, the inside woodwork of the car, posts and uprights were gnawed, and boards were eaten off its sides; there was no food, or evidence of food, or manure in the car, and a postmortem examination of the dead horses showed nothing in their stomachs; a veterinarian, called as an expert, by plaintiff, expressed the opinion that lack of food was a contributory cause to the bad condition of the animals upon their arrival, — that, in his opinion, had they been
Some of the above facts are taken from the evidence presented by plaintiff and others from that of defendant ; in addition, the latter produced other testimony indicating a feeding within 36 hours.
On the whole, we feel that the issues, as to whether or not, as a matter of fact, the horses had been fed within the required time, and whether defendant acted with due care in the premises, were for the jury, under proper instructions from the trial judge, who might well have charged that, if the jury believed a reasonable exercise of care on the part of defendant railroad would have shown the horses in such a starving condition that its inspector must have known they were in dire need of food and water, then the absence of due attention to their needs would constitute negligence.
Defendant further contends that the evidence of the experts called by plaintiff, who testified that, in their professional opinion, the horses had not been fed within the required time, was clearly inadmissible; but with this we cannot agree. In Schaeffer v. P. & R. R. R., 168 Pa. 209, 213, this court said: “Witnesses who had been for years engaged in shipping mules, who knew their habits and dispositions and the causes likely to lead to their injury on board cars, and who saw these mules
The points discussed in the first part of this opinion, concerning the erroneous instruction on the law, as to the liability of defendant for negligence of all prior carriers, are covered by several assignments of error; these are sustained. Since the case must go back for a new trial, which, under the law as here laid down, will necessarily be conducted along different lines from the last one, it would serve no good purpose to go further into the other assignments. ,
The judgment is reversed with a venire facias de novo.