134 Ky. 208 | Ky. Ct. App. | 1909
Opinion of the court by
— Affirming.
The evidence tended to show that the jack was in apparently sound condition when delivered to appellee at Bowling Green. The veterinary at Cincinnati testified that the animal died as the result of azoturea, a disease of the muscles of the loins and hind quarters, due to excessive albumen in the blood, probably the result of overfeeding and lack of exercise. He further testified that there were no injuries of any consequence to the head. The evidence was such upon these issues that the case was one for the jury. It was sharply conflicting in material parts, and pretty equally balanced in weight. The court’s instructions to the jury are in four paragraphs. The first told the jury that if the jack was injured while being shipped by the defendant, and the injury was the proximate result of the defendant’s failure to exercise reasonable and proper care for the animal, they should find for the plaintiff the fair market value of the jack at Sandusky, Mich. The second paragraph of the instructions is in these words: “If the jury believe from the evidence that
While the language of the petition is perhaps broad enough to have allowed a recovery for the loss of the jack, from whatever cause, for which the defendant was liable, the real issues tried out in the-circuit court, and which were those evidently in the minds of the parties, were: (1) Whether the jack was injured physically while in the defendant’s, custody, and as the result of the carrier’s negligence; and (2) whether it died from a disease which it had before it was delivered to the defendant, and independent of any injury inflicted upon it because of the defendant’s negligence. While the plaintiff objected formally to each of the first three instructions, he did not offer any other presenting his view of the law of the case. Nor does he now contend that there was error in those instructions, other than that the carrier should have been held as an insurer of the safety of the animal; at least, that it was incumbent on the carrier to show when it failed to-
We cannot say that the jury were precluded by the instructions from considering the phase of the case which has just been discussed and which impresses us as constituting appellant’s real cause of action.
The principal error assigned by appellant for a reversal is that the court ruled against him and to his prejudice in placing upon him the burden of proof in the case; that the instructions should not have imposed upon him the burden of showing that the jack was lost, not by reason of some disease or vicious propensity of its own. It is contended that the carrier is an insurer against its own negligence as to live stock, as it is to inert freight; but that the qualification noted in reported cases, to the effect that the injuries received by live stock because of its own vicious nature, or disposition, or from diseases not caused by the carrier’s negligence, is a matter of special defense. Let it be granted; still appellant cannot avail himself of his contention in this case, because he voluntarily assumed the onus throughout the case, and made no objection on that ground at any stage of the trial. He is now bound by his conduct.
Appellant also claims that inasmuch as he paid the freight, $31.68, for carrying the jack through from Bowling Green to Sandusky, and as the appellee executed only part of the contract, he was entitled to recover the amount paid as freight.
Judgment affirmed.