28 Mont. 297 | Mont. | 1903
prepared the opinion for the cousrt.
This action is brought to recover damages claimed to have been sustained by the plaintiff as a shipper of live stock over defendant’s line of railroad. The pleadings filed by the parties
The first three allegations of the complaint are to the effect: That plaintiff is a resident of Montana. That defendant is a corporation duly incorporated, > and was a.t the time operating a line of railroad from the city of St. Paul westward through the states of Dakota and Montana into the city of Seattle: That the defendant was a common carrier, transporting merchandise and live stock, for hire, over said line of road, and over other lines of road between the city of St. Paul, Minn., and Chicago, Ill. (4) That it was the duty of defendant to provide suitable cars for the transportation of live stock when requested so to do. (5) That prior to the 16th day of November, 1896, the defendant promised, as such common carrier, to provide cars and to transport for plaintiff from Culbertson, Mont., to Chicago, Ill., 2,889 head of sheep' on said day. (6) That at Culbertson, on November 16, 1896, the plaintiff delivered to' defendant the said sheep; and that the same were in sound and marketable condition; that the defendant then and there received the same as such common carrier, and promised, for a certain reward, to transport the same to the city of Chicago1. (7) That defendant, as such common carrier, promised to transport the said sheep1 with all due and reasonable speed, and within the usual and customary time required for such transportation. (8) That it was the duty of defendant, as such common carrier, to complete said transportation within four days, and that the same could have been done with the exercise of due and reasonable diligence. (9) That defendant, in disregard of its duties as such common carrier, willfully, wrongfully, and negligently kept ■ and detained said sheep at said Culbertson until the 26th day of November, 1896. (10) That on November 26, 1896, a violent storm was prevailing along the line of said railway, which was known to the defendant; that it was then known to the defendant that it could not safely transport ■and carry said sheep, and that defendant’s line of road was obstructed and blockaded; that defendant willfully, negligently,
To this complaint the defendant filed an answer admitting the allegations of the first three paragraphs1, and denying in iota paragraphs 5, 6, 7, 8 and 9. Defendant further admitted the occurrence of the storm referred to in the complaint, and that its line of road was obstructed between Culbertson and St. Paul, but alleges «that the same was known to plaintiff at the time said sheep were loaded; denies that defendant loaded the sheep, but alleges same were loaded by plaintiff. The special contract is then set up in the answer entered into between the parties on the day of shipment, providing in substance as follows: Admitting the receipt of the sheep by the defendant upon the terms and conditions of this contract, and that the same were accepted by the' shipper as just and. reasonable'in consideration that the first party will transport the live, stock
To this answer the plaintiff filed a replication denying the' facts therein stated.
At the trial of the case special questions were submitted to the jury, on which they found: (a) That the injury to the sheep in question was attributable to the fact that they were exposed to cold and stormy weather, (b) That said injury was caused by such exposure, (c) That the same was attributable to the negligence of defendant, (d) That defendant did not notify plaintiff of the prevalence of a storm along the line of its railway, (e) That when the sheep> reached South St. Paul they had not shrunk or suffered materially from lade of food. (f) That the train dispatcher was guilty of gross negligence in delaying the train at Williston.
A verdict was rendered for plaintiff for $2,424.67. J"udgment was entered thereon. Prom this judgment and the order of the court overruling defendant’s motion for a new trial defendant appeals.
It was established at the trial that plaintiff did load the sheep on the cars at Culbertson, that he did enter into' the contract set up in defendant’s answer, and that the sheep were turned over to him at South St. Paul with his consent.
1. The trial court held this complaint to be one in tort, rather than on contract, and permitted plaintiff to introduce
■Tbis objection strikes at tbe very foundation of tbe action, and will be first considered. Tbat actions on contract and actions in tort cannot be united is elementary. -Tbe one-is based, upon tbe violation of a contract made by tbe parties thereto; tbe other is based upon the violation of duties and obligations determined, not from tbe form; or contents of any contract, but from tbe policy of tbe law. If tbis complaint is based upon a private contract, of which tbe parties, and not tbe policy of tbe law, are tbe authors, tbis action must fail, for no such private contract was proved. And in tbis we are considering tbe complaint alone, and not tbe subsequent pleadings. In actions by a shipper against a common carrier for violations of a special contract of shipment, it is necessary for the complaint to set out tbe contract either in substance or in haec verba, and to declare upon it. And where tbe action is in tort, based upon a violation of tbe carrier’s common-law duty, it is still necessary for tbe plaintiff to state facts which show, not only bis rights, but tbe duties of tbe carrier, in tbe premises, before be can complain of any breach of duty on tbe part of tbe carrier. Both these forms of action are, in effect, based upon violations of contracts. Tbe one upon tbe violation of an express, contract made by tbe parties themselves is called an action “ex con-tractuand where it is sought to combine in tbe same action charges against tbe carrier for violations of a special contract and also for violations of bis common-law duties, tbe action is called “ex delicto quasi ex contractu/’ Tbe other form of action, based upon violations of tbe implied contract declared by law, is called an action “ex delicto “ or in tort.
It is frequently difficult to determine from an examination of tbe complaint whether tbe action is on contract or in tort; tbat is, whether it is meant to charge tbe carrier with a violation of tbe express contract made by tbe parties, or a violation
The question here under consideration was discussed at some length in the case of New Jersey Nav. Co. v. Merchants' Bank, 6 How. 344, 12 L. Ed. 465, and the general result there reached was that, notwithstanding there was in that case a suit founded upon a special contract of carriage, yet in the very nature of the action it was such that, essentially, whatever its form, it was founded in tort.
In Bryant v. Herbert, 3 C. P. Div. 189, the same rules of discrimination were applied in testing the form of an action, but with a contrary result. Fustic Hammond, in commenting on the decisions in the last two cases, cited, says: “These two eases establish that in solving a question like this we are to1 look to the requisite nature of the remedy the plaintiff is entitled to on the fact he states, rather than any form his declaration may assume; though, of course, we cannot wholly disregard the form of the declaration.” (Whittenton M. Co. v. M. O. R. P. Co supra.)
It has been decided that a mere averment of a, promise, or the use of the words “agreed, understood, or promised,” does
There may be an averment of a consideration for assuming the duty imposed by law as a matter of inducement, and as showing a compliance by the shipper with his duty in this regard, for the carrier is under no obligation to transport goods gratuitously. Wherever the gravamen of the complaint is solely for a neglect of duty imposed upon the carrier’ by law, the action is in tort. And even where there is a special contract varying and limiting the carrier’s common-law liability, the plaintiff has an election to bring his action on the contract or to sue in tort for damages for negligence. (3 Enc. P. & P. 821, 822, and cases cited.)
There can be no uncertainty, as to the cause of action set forth in this complaint. It is based upon a violation of the defendant’s duties as a common carrier. The complaint is given in substance in the statement of facts, and, when examined in the light of the authorities herein cited, we believe that but one conclusion can be reached. Complaints similarly drawn have been held to state causes of action ex delicto in the following casos: Bowers v. R. & D. R. R. Co., 107 N. C. 721, 12 S. E. 452; Ridcout v. M., L. S. & W. R. Co., 81 Wis. 237, 51 N. W. 439; Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228, 1 L. R. A. 719, 7 Am. St. Rep. 900 ; Smith v. C. & N. W. Ry. Co., 49 Wis. 443, 5 N. W. 240; Stockton v. Bishop, 4 How. 155, 11 L. Ed. 918; Flynn v. H. R. R. R. Co., 6 How. Prac. 308.
2. The appellant claims that the court erred in not sustaining its contention that there is a variance between the cause of action pleaded and that proved. This contention is based upon the theory that the defendant, being charged with liability growing out of a breach of its common-law duties, and the court having found that the special contract pleaded in defendant’s answer covering this shipment was entered into by the parties, the plaintiff cannot recover, as to permit plaintiff to do so would
Tbe special contract is pleaded as a defense, and not in bar. We are aware that tbe decisions on tbis question are somewhat
3. Defendant next assigns as error the refusal to give its requested instructions Nos. 1, 2, 3, and 4. Evidence was admitted relative to tbe agreement or duty of tbe defendant to provide cars on tbe 16th day of November, 1896, for transporting tbe sheep;, and as to the care and feed of tbe sheep at Culbertson between that day and tbe time of shipment on November 26th; and also, as to tbe conversation had between the plaintiff and one J. W. Donovan, train dispatcher at Great Falls. This testimony was permitted to' go in without objection, until tbe plaintiff, then testifying as a witness in bis own behalf, was asked as to whether, while at Culbertson,, he was put to any expense in connection with the keeping and care of the sheep that would not have been incurred had the shipment been made as soon as they were delivered there. This evidence was objected to, and the court then held the action to be in tort, and that defendant was not liable for any loss or damage prior to the day when the sheep were loaded on defendant’s cars. Subsequent to this ruling the court permitted plaintiff, over the objection of the defendant, to testify as to damages sustained by reason of the shrinkage of the sheep' while at Culbertson,
These requested instructions are, in substance: (1) That defendant never agreed to’ have cars at Culbertson on November 16th. (2) That defendant was not charged with any duty to have cars at Culbertson on November 16th, and tbe jury cannot allow plaintiff damages by reason of tbe failure of defendant to furnish cars on that day. (3) Tbe defendant was not to blame for shrinkage prior to November 26th, and is not' responsible therefor. (4) That tbe evidence does not justify recovery of damage on account of any act of defendant prior to tbe time of loading. Tbe court refused to give these instructions, but, in lieu thereof, instructed tbe jury as follows: “You will disregard tbe claim of tbe plaintiff of $356.12 for damages alleged to have been sustained by tbe sbeepi while at Culbertson, as plaintiff cannot recover for that under tbe allegations of this complaint.” This: instruction withdrew from tbe consideration of tbe jury all damage sustained prior to tbe loading of tbe sbeep on tbe defendant’s cars, and was, in our judgment, amply sufficient to protect tbe defendant, and to inform tbe jury that tbe plaintiff was not entitled to anything on account of expense or shrinkage while tbe sbeep were at Culbertson.
Defendant claims that it was acting on tbe theory that tbe action vras on contract, and was misled thereby, and permitted the evidence to go in without objection. Conceding this to be a fact, plaintiff cannot be prejudiced by reason of defendant’s error in taking tbe wrong theory of tbe case. Tbe plaintiff bad a right to show tbe condition of these sbeep at tbe time they were shipped. Introducing evidence as to tbe treatment and food received immediately prior to tbe shipment was one way of showing it. Whether tbe correct way or not, it was done
4. The action of the court in giving its instructions Nos. 12, 13, and 15, and in refusing to give defendant’s requested instructions Nos. 10, 11, and 13, is next assigned as error. The instructions given were framed upon the theory that, notwithstanding the valuation of $2.50 per head, placed upon the sheep at the point of shipment by paragraph 7 of the special contract, plaintiff was entitled to recover the full amount of damage sustained -by reason of injury, not exceeding that amount per head.
At common law the carrier is liable for the full amount of the damage resulting from his negligence. This liability mgy be limited by an express agreement made between the shipper and the carrier at the time of the delivery of the goods for transportation, provided the limitation be such as the law can recognize as reasonable, and not inconsistent with sound public policy. (Hart v. Pa. R. R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; Squire et al. v. N. Y. Cen. R. R. Co., 98 Mass. 244, 93 Am. Dec. 162.) And where the parties have, by stipulation, fixed upon a value of the property, such stipulation has the effect of limiting the liability of the carrier, and is, to that extent, a defense to an action for damages.
The value of the stock at the place of shipment and its value at the place of destination may be, and usually are, different The costs of transportation paid by the shipper would seem to indicate that in such amount, at least, the stock had a greater value at the place of destination; else there would be little motive in making the shipment at all. The uncertainty of market conditions renders it difficult, if not impossible, to fix with precision the value the stock will have when the place of destination is reached. The value then agreed upon, unless the stipulation provides otherwise, has reference to the time and place of shipment. This value so fixed, whether for the purpose of obtaining shipping rights and concessions- or as the true value
As to wbetber a contract may provide that tbe carrier shall bo liable only for the fixed value in case of total loss without a refund of the freight paid, is not here discussed or decided. Tbe general rule on this subject is thus stated in tbe fifth volume (2d Ed.) of tbe American and English Encyclopedia of Law, at page 335: , “Where tbe stipulation limits tbe liability of tbe carrier in any event to' a named sum in case of loss of tbe property shipped, and no loss occurs, but tbe property is injured, tbe shipper is entitled to recover damages for tbe injury up to tbe amount named, although tbe injured property may still be valuable. Tbe effect of tbe stipulation is not to fix a limit in case of loss and a proportionate limit in case of injury, but to fix an amount which shall be the limit of recovery, wbetber for loss or injury.”
In Starnes v. Railroad, 91 Tenn. 516, 19 S. W. 675, tbe contract under which tbe shipment was made contained tbe following' stipulation: “And it is further agreed that, should damage
In Hart v. Pa. R. R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717, the contract of shipment contained a clause to the effect that the carrier assumed a liability on the stock to the extent of $200 per head for each horse or mule shipped. One of the horses shipped was killed, another was injured. The trial court charged the jury that: “It is competent for a shipper, by entering into a written contract, to stipulate the value of his property, and to limit the amount of his recovery in case
In St. L. I. M. & S. Ry. Co. v. Lesser, 46 Ark 286, .it was held proper to insert in tbe contract of shipment tbe provision that in case of injury or partial loss tbe amount of damages claimed should not exceed tbe same proportion. Tbe contract before us contains no such provision, and does not contain any provision from which it can be reasonably inferred that such was tbe intention of tbe parties.
"VVe believe tbe true rule of damages in such cases to be that kid down in the decisions quoted and as contained in tbe instructions of tbe court now under consideration, and this we believe to- be tbe doctrine of tbe federal courts as well as those of almost all of tbe states. (Hart v. Pa. Ry. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717, and cases there cited.)
(a) Appellant further claims that the court’s instructions No. 13, found on page 130' of tbe record, and No-. 15, on page 134 thereof, are inconsistent with each other. These instructions are merely explanatory of each other, and are not in conflict Both are based upon tbe theory that for injury caused by tbe negligence of defendant plaintiff could recover for tbe full amount of injury sustained, not exceeding $2.50 per bead, notwithstanding some value might still be left in tbe injured property. Requested instruction No. 13 is tbe same as tbe court’s instruction No. 16, except as modified in accordance with the rule of law above stated; and requested instruction No-. 11 is tbe same as tbe court’s instruction No. 14, except tbe
5. Instructions Nos. 14-, 15, and 18 were requested by the defendant on the theory that the contract relieved the defendant from liability resulting from delay, even though caused by its ordinary negligence'. The court refused to' give these instructions, and the defendant brings the question to this court.
Before inquiring info the precise terms of the special contract cf shipment, it may be well to first consider the proposition as to whether it is permissible, under the law, for a carrier to limit his liability to such an extent that he may relieve himself from damages resulting, from his own negligence, in the matter of delay. The statute of this state permits a carrier to limit his common-law liability to the extent therein stated. Section 2816, Civil Code, provides: “The obligations of a common carrier cannot be limited by general notice on his part, but may be limited by special contract-.” This section standing alone would seem to confer upon the carrier the right by special contract to limit his liability, .even wdien guilty of gross negligence. Section 2877 of the same Code, however, provides: “A common carrier cannot be exonerated by any agreement made in anticipation thereof from, liability for the gross negligence, fraud, or willful wrong of himself or his servants.” This section limits the general power given the carrier by the preceding section. These two sections, construed together, give to the carrier the light by special contract to provide against liability in all cases except Avhen it arises from his gross negligence, fraud, or willful wrong. Section 2912 of the Civil Code further provides: “A common' carrier is liable for delay only when it is caused by his want of ordinary care and diligence.” If this latter sec
It is a fundamental principle and universal rule that where a statute is taken from another state it is taken subject to the interpretation placed upon it by the courts of that state, and in principle it is difficult to understand why the same doctxine should not apply when a portion of the common law is enacted as a part of the statute. In Baker v. Baker, 13 Cal. 87, it was held that “a statute in affirmance of the common law is to be construed as was the rule by that law.” This rule of construction would, perhaps, be modified by the statutory provisions that all statutes are to be liberally construed, with a view to effect their objects and to promote justice. (Section 4, Political Code; Section 4652, Civil Code.)
The very nature and necessity of the common carrier’s employment, the enormity of the carrying trade, materially affect the vital interests of the entire country, and as such give to the public an interest in the rules and laws which should govern such employment. The interests of the parties primarily affected — that is, the shipper and the carrier — in any particular instance must be held to be subordinate to the welfare of the state and the community at large. The establishment of rules which will conserve the interests of the state and community, as well as the parties, is a matter of public policy; and the parties directly interested cannot be permitted, by special agreement or otherwise, to contract away these rules of law established for the conservation of public polity.
The general rule of law bearing upon this subject is stated in 5th Am. & Eng. Ency. Law (2d Ed.), 258: “The general rule is that a carrier cannot limit his liability for delay except by a special contract with the shipper, and that in no event can it limit its liability for delay resulting from its own negligence.” (Atchison, T. & S. F. R. R. Co. v. Ditmars, 3 Kan. App. 459,
In Hart v. Pa. R. R. Co,. 112 U. S. 338, 5 Sup. Ct. 151, 28 L. Ed. 717, the court says: “It is the law of this court that a cimmon carrier may, by special contract, limit his common-law liability; but that he cannot stipulate for exemption from the consequences of his own negligence and that of his servants. (New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344, 12 L. Ed. 465; York Co. v .Central R. R. Co., 3 Wall. 107, 18 L. Ed. 170; Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; R. R. Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827; Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174, 23 L. Ed 872; Railroad Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 535.)”
In Railroad Co. v. Lockwood, 17 Wall. 357, the court laid down the following propositions: “(1) A common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. (2) It is not just and reasonable in the eye of the law for a
The power of the common carrier to limit his liability by reasonable special contract has long been recognized. The statutes of 17 & 18 Vict. c. 31, par. 7, provides, in substance, that the carrier may make such special contracts only as shall be judged to be just and reasonable by the court before which the question may arise. (Peck v. North, Staffordshire R. R. Co., 10 H. L. Cas. 473; Gregory v. West Midland R. R. Co., 2 H. & C. 944.) But no contract is reasonable that is subversive of public policy. Section 2912 of the Civil Code is equivalent to saying that a common carrier shall be liable for damages resulting from delays caused by its want of ordinary care and diligence ; that is, for ordinary negligence. This being a legislative declaration as to when the common carrier shall be liable for delay, it cannot be abridged by special contract. It is a legislative limitation upon the previous general power given to contract. This rule that the common carrier may not limit his liability for delay arising from his own negligence prevails in the federal, and, it is believed, in all the state, courts,' except those of New York (which permit the carrier to limit his liability against his own negligence), and of Illinois and Wisconsin, which permit the carrier to limit his liability except against Lis gross negligence. The handling of the defendant’s trains was a matter peculiarly -within the power of the defendant. The shipper could exercise no control. He was bound to await the will and action of the carrier; and, if his stock was injured ar a result of negligent delay on the part of the carrier, he is, in the absence of negligence or fault on his part, entitled to reasonable compensation for such damages as he may have suffered by reason of loss or injury to his stock.
The terms of the special contract in this case with reference to the subject now under consideration are somewhat ambiguous, but the view of the law here taken renders it unnecessary to enter into any further discussion with reference to this contract on this subject. The court committed no error in refusing to give the instructions requested.
The defendant contends that, inasmuch as the agents of plaintiff accompanied this shipment, the burden was on the plaintiff to show the cause of the death and injury. This position of the defendant is untenable under the facts of this case. The fact that the shipper accompanies, the stock can have no greater effect than to relieve the carrier as an insurer when the loss or injury is shown to fall within the exception named in the special contract; but in this, case the complaint declares upon the carrier’s common-law liability. Any exception contained in the special contract limiting this liability is a matter of defense, and the burden is upon the defendant to show that it falls within the exception. The presence of the shipper or his agents upon the train transporting the stock could not of itself have the effect of delaying the train, and cculd not affect the question of negligence on the part of the carrier in the matter of delay. It was the duty of the defendant to afford the shipper proper facilities for watering, feeding, tending, and .caring for the stock, and to transport the stock with reasonable diligence, and with as little delay as practicable. (Edwards on Bailments (2d. Ed.), par. 581, and note.) We also cite in this connection Atchison, T. & S. F. R. R. Co. v. Ditmars, 3 Kan. App. 459, 43 Pac. 833; Leonard v. Chicago & Alton Ry. Co., 54 Mo. App. 293; 22 Am. Law Rev. 214 et seq; Witting v. St. L. & S. F. Ry. Co., 101 Mo. 634, 14 S. W. 743, 10 L. R. A. 602, 20 Am. St. Rep. 636.
If the presence of the shipper or his agents, or their acts or conduct, had the effect of preventing the defendant from in
TJnder the facts in this case,, and other instructions given, we find no error in this instruction.
7. Another instruction given is as follows: “The court further instructs you that if you find from the evidence that an obstruction of the defendant’s road by a snow blockade or otherwise existed at any point at the time these sheep were loaded^ which would interfere with the prompt and safe carrying and delivery of these sheep, and which was known to the defendant, and the sheep were accepted by the defendant for shipment without informing the plaintiff of the state of affairs, the defendant cannot offer the obstruction as an excuse for failure to deliver promptly, even though the obstruction was the act of God. Having undertaken to take the shipment with full knowledge of the facts, its liability as a common carrier attached. It was bound to take notice of the signs of approaching danger if any were known to it, and, if the danger was of such a character as reasonably to awaken apprehension at a time when the facilities and means of escape from danger were within their control, they were bound to use such means for the safety of the property intrusted to their care.”
The appellant complains of this instruction for the reasons (1) there is no evidence to base it upon; (2) that it is an erroneous statement of the law.
The record contains evidence as to the prevalence of a storm at the time this shipment was made; that the probability of obstruction was discussed, defendant’s witnesses testifying that they informed plaintiff at the time of shipment that the worst blizzard ever known was prevailing in North Dakota along the line of defendant’s road. The receipt of this information was denied by plaintiff, and the question as to the existence and severity of the storm and the dangers attendant upon the shipment became and was one of the issues in the case.
8. We have examined tbe other instructions given as well as refused, and find no error in tbe action of tbe court with respect thereto, excepting tbe last part of instruction No. 15, found on page 134 of the record, which will be further considered.
Tbe objection made as to tbe conversation of plaintiff with Superintendent Hale is not well taken, as tbis evidence bad a direct bearing upon tbe question of negligence. Nor can the objection be sustained that defendant bad not received tbe notice specified in paragraph 6 of tbe special contract. The record, however, shows that sucb information was given to tbe defendant by letter, and that tbe railroad department called for information regarding it shortly after tbe shipment was made. Tbis was a sufficient notice, unless objection was made thereto by defendant; and it does not- appe'ar from tbe record in the case that any such objection was made. A general discussion of tbis subject is found in tbe authorities cited. (Central R. R. Co. v. Pickett, 87 Ga. 734, 13 S. E. 750; Wabash Ry. Co. v. Brown, 152 Ill. 484, 39 N. E. 273; Hess v. M. Pac. Ry.,
The counterclaim of defendant was submitted to- the jury, and they were told by the court in its instruction No. 17: “If your verdict upon the plaintiff’s case is in favor of the plaintiff, you should deduct this amount, if plaintiff’s established claim is large enough; otherwise you should find a verdict for the defendant for the balance or for its whole counterclaim.” No special finding was asked or made with respect to the counterclaim of defendant, and it is impossible to ascertain from an examination of the record whether the jury wholly disregarded defendant’s claim; or whether it allowed it in full, and deducted it from the amount of the verdict returned for the plaintiff.
The further contention made by the defendant that the evidence is insufficient to sustain the verdict cannot be sustained, for the reason that the testimony is conflicting on all points at issue, and this court has repeatedly held that in such a case it will not disturb the verdict or findings. The credibility and wTeight to be given to the testimony of witnesses is a question exclusively within the province of the jury, and the appellate court, in case of substantial conflict, has no power to disturb the findings thereon. This court cannot try the case de novo, and thus invade the province of the trial court by passing upon disputed questions of fact and the credibility of witnesses. (Baxter v. Hamilton, 20 Mont. 334, 51 Pac. 265; Barnett v. Brown, 18 Mont. 369, 45 Pac. 554; Merchants’ Nat’l Bank v. Greenhood, 16 Mont. 431, 41 Pac. 250, 851; Chicago Title & Trust Co. v. O’Marr, 25 Mont. 242, 64 Pac. 506; Wastl v. Mont. Union Ry. Co., 24 Mont. 159, 61 Pac. 9; State v. Howell, 26 Mont. 4, 66 Pac. 291; State v. Ford, 26 Mont. 2, 66 Pac. 293; State v. Hurst, 23 Mont. 484, 59 Pac. 911; State v. Allen, 23 Mont. 118, 57 Pac. 725.)
9. Plaintiff, in his tesimony, stated that after leaving Culbertson the shrinkage of the sheep- was 33 pounds per head, or
TJpon a thorough examination of the entire case and the law bearing thereon, we are unable to find any material error other than that just mentioned. We therefore recommend that the case be remanded to the district court, with directions to grant a new trial, unless within thirty days after the filing of the remittitur from this court the plaintiff file with the clerk his consent in writing that the judgment be modified by deducting from the amount thereof the sum of $000, in accordance with the views herein expressed, in which event, and upon the entry of the judgment as modified, the judgment and order appealed from be affirmed. We further recommend that, if such consent in writing be filed, and the judgment be modified, then appellant shall recover one-third of the costs of this appeal; otherwise, the appellant shall recover all the costs of the appeal.
Pee Cubiam:.- — For the reasons given in the foregoing opinion it is ordered that this cause be remanded to the district court, with directions to grant a new trial, unless within thirty days after the filing of the remittitur from this court the plaintiff file with the clerk his consent in writing that the judgment bo modified by deducting from the amount thereof the sum of $200, and upon the entry of the judgment as modified the judgment and order appealed from be affirmed; that, if such consent in writing be filed, and the judgment be modified, then appellant shall recover one-third of the costs of this appeal, otherwise the appellant shall recover all the costs of the appeal.