145 Ky. 271 | Ky. Ct. App. | 1911
Reversing.
On Friday, January 1st, 1909, the appellee Cecil shipped 59 nuiles from St. Mary’s, in Marion County, Kentucky, to Atlanta, Georgia, over the appellant’s railroad. The mules were shipped in two cars, one containing 30 mules and the other 29. They left St. Mary’s at 11 o ’clock in the forenoon, and arrived at Knoxville at 6 o ’clock the next morning, where they were unloaded and placed in covered stock pens, fed and watered, and allowed to rest until Sunday night at 9 o’clock, when they were reloaded and started for Atlanta. When they reached Atlanta on Monday morning at 11 o’clock, one mule was sick with pneumonia, two or three were down upon the floor of the car, and five or six were injured and bruised about the eyes, legs and bodies. The mule that was sick with pneumonia died within a few days, and the injured mules were sold at a reduced price. The mule that died was worth $225.00, while the other five or six mules, which were worth an equal amount, were sold for perhaps half that sum. Appellee sued the appellant company for $675.00 damages, for negligence in handling the mules, and for the delay in transporting them. He recovered a verdict for $550.00, and from a judgment based on that verdict appellant prosecuted this appeal.
We will first dispose of the charge of delay in the transportation of the mules. The run from St. Mary’s to Knoxville covered a distance of 215 miles, and was made in 19 hours; while the run from Knoxville to Atlanta, a distance of 197 miles, was covered in 14 hours. The total distance of 412 miles was thus covered in 33 hours of traveling time. The federal statute prohibits an interstate commerce carrier from keeping live stock of this character on cars for a longer period than 28 hours without stopping at least five hours for feed and water. It is apparent, therefore, that appellant could not have run through from St. Mary’s to Atlanta within the limited time of 28 hours. Moreover, the Georgia Sunday law prohibited the running of trains carrying live stock on the Sabbath, unless the train had been delayed beyond the schedule time, in which event it was not required to lay over on the line of the road on Sunday, but might run on to the point where, by due course of shipment or consignment, the next stock pen on the route might be, where such animals might be fed and watered. It was not only necessary, therefore, to break the trip at some point in order to avoid the penalties of the 28 hour
L. & N. R. R. Co. v. Warfield, 30 Ky. L. R., 352, is quite similar to this case in its controlling facts; and in that opinion, we said:
“In the case at bar, there is an utter failure of evidence from' which the jury could fairly and reasonably conclude that the pneumonia from which the mules died was the result of the company’s negligence. The burden was upon the plaintiff to show that the death of his mules was due to the negligence — some negligence, at least — of the defendant company. ■ Plaintiff in his proof failed to make this showing, and the defendant, upon being required to introduce its testimony, showed conclusively that while the mules were in its charge they were handled with due care, and received that degree of care and attention in transit which a reasonably prudent person would give them under similar circumstances; The defendant further proved that none of the mules were permitted to eat or drink poison while in its care" and custody.
Under this proof the trial court should, at the close of the testimony, have given the jury a peremptory instruction to find for tne defendant.”
“The rule as now established by the great weight of modern authority is that railroad companies are common carriers of live stock with substantially the same duties and responsibilities that existed at common law with respect to the carriage of goods, except that they are not hable as insurers against loss and injury resulting from the inherent nature, propensities, or proper vices of the animals themselves.”
After quoting the above language, with approval, in Louisville & Nashville Railroad Co. v. Pedigo, 129 Ky., 666, we said:
“So, in Kentucky the rule is, as at the common law, that a railroad company or other common carrier undertaking to transport live stock becomes an insurer of its safe delivery, except where injury to or the loss of such live stock results from the act of God or the public enemy, or from the inherent nature, propensities, or viciousness of the animals themselves.”
We think the facts of this case bring it squarely within the scope of the decision in L. & N. R. R. Co. v. Wathen, 22 Ky. L. R., 85, where we said:
“Prom the testimony of the plaintiffs a jury could not, by any fair reasoning, conclude that the pneumonia was produced by the negligence of the defendant. It is no more reasonable to conclude that it was from an injury which the horses may have received by the alleged rough handling of the car, than by the exposure which resulted from transferring them from warm stables and transporting them in the car. Prom the testimony offered by them the jury could do nothing more than guess as to what produced the pneumonia, pnd the defendant’s rights should not be guessed away for one upon whom the burden rests to establish a cause of action against it.”
We have precisely the same state of facts here. In short, the law requires the plaintiff to make out his case by competent evidence, and there is no evidence here to show that the death of the mule that died from pneumonia, or that the injuries to the other mules, were caused by any act of negligence upon the part of the appellant. The burden was upon appellee to show the negligence of the appellant by affirmative evidence; it must not be left to a mere guess as to how the injuries were
The appellant’s motion for a peremptory instruction should have been sustained.
Judgment reversed for a new trial.