5 Ind. App. 209 | Ind. Ct. App. | 1892
The complaint of the appellees contained two paragraphs, a demurrer to each of which was overruled.
The first paragraph shows, in substance, that the appellees were engaged in buying, shipping and selling live stock at Millgrove; that the appellant’s railroad ran through that place, and connected with other railroads which ran to East Liberty, in Pennsylvania; that the appellant held itself out to the public as a common carrier for hire of personal property, such as merchandise, hogs and cattle, from Millgrove to East Liberty; that it was its duty as such common carrier to furnish cars and transportation for hogs and cattle for hire along its line of railroad when requested so to do; that the appellees, relying upon their right to have such cattle and hogs as they might wish transported duly transported over said railway without delay, purchased, on the 30th of August, 1890, six veal calves, five milch cows, twenty fat cattle, and fifty-five fat hogs, and took them to Millgrove for transportation to East Liberty, and then and there demanded of the appellant means of transportation for said stock, and that it should transport the same over said line of road to East Liberty or to the termination of its route in that direction, the appellees being ready and willing to pay the appellant the usual and customary rates of freight charges for the transportation of the stock; that the appellant, wholly disregarding its duty and obligation, failed and refused to transport said stock or any part thereof, although it was able to do so on said day had it so desired ; that, as the appel
The second paragraph, after introductory averments like those of the first, proceeded in substance to allege that the appellees, relying upon their right to have such cattle and hogs as they might wish transported duly transported without delay over said line, and also relying upon the promise and agreement of the appellant to furnish cars and trans
It is contended that the first paragraph does not show by allegations of facts that it was the appellant’s duty to furnish the transportation when it was demanded. It is intimated that it should have been alleged that the appellant had room and means of transportation when it was demanded, and that the statement, “ although it was able to do so on said day had it so desired,” is not an allegation of an issuable fact, but is a mere recital or a conclusion of the pleader.
It is also contended that it should have been alleged that the appellant had a regular train which carried live stock and which passed Millgrove on the 30th of August after the stock was tendered for transportation, and which could have carried it toward its destination.
"We are not disposed to admit the objections urged against this paragraph by appellant. The appellees do not in this paragraph set up any contract or promise, but rely upon a violation of a duty of the appellant as a common carrier of live stock. It is the duty of a common carrier, in the absence of special agreement, where goods have been properly proffered for carriage, to receive them and transport them within a reasonable time and in the order in which they were received. It must act impartially toward shippers, and can not be required to give preference to one over
The ability or want of ability of a railroad company to furnish cars and transportation when it is ordered by a shipper, without undue interference with its business and without disregard of its obligation to treat shippers impartially, and without the use of means of transportation already subject to orders or engagements, must be regarded as being peculiarly within the knowledge of the officers and agents of the company. To show that, with reasonable diligence, the company could not furnish the means of transportation when it was ordered or at the time the company was notified to have it ready, without undue interference with its business or duty,- must be easier for the company than to show the contrary would be for the shipper. Logically the burden of proof upon this question should be upon the company. Ayres v. Chicago, etc., R. W. Co., 71 Wis. 372 (5 Am. St. R. 226.)
What the shipper can not be required to prove he ought not to be obliged to allege.
In Chicago, etc., R. R Co. v. Thrapp, 5 Ill. App. 502, it was held that where a common carrier receives goods with knowledge that it is expected that they will be delivered by a certain time, it assumes the liability of delivering them in time, or in case of failure, of shovñng that it used every reasonable effort to make the delivery.
A common carrier is liable in damages for refusal to carry without reasonable excuse. It is for the carrier to show the excuse.
The first paragraph, instead of being bad for want of the allegations suggested by counsel, did not need to contain any averment respecting the appellant’s ability. See the complaint in Pittsburgh, etc., R. W. Co. v. Morton, 61 Ind. 539.
It is contended that to make the second paragraph of complaint good it should have shown by proper averments that
If the want of proper facilities would have relieved the appellant from responsibility for the failure alleged in this paragraph, it was matter of defence.
There was an answer in five paragraphs, the first being the general denial. A demurrer to each paragraph, except the first, was sustained.
The second paragraph of answer was addressed to the first paragraph of complaint. It was alleged, in substance, that at the time complained of the appellant owned and operated a line of railroad six hundred and forty miles in length, along which were seventy points from which live stock were shipped over said railroad, many of which furnished for shipment much more live stock than Millgrove; that appellant had cars sufficient to transport all live stock ordinarily offered for transportation, but that at the time complained of there was an unusual demand for cars, and on that account appellant was not able to furnish appellees the cars they desired on the 30th of August, 1890, but that it did furnish them cars and transport their said stock as soon thereafter as it could furnish cars for that purpose, having ■due regard to the rights of other shippers who had demanded transportation at or before that time; that at said time all of appellant’s ears that were suitable to transport said stock were in actual use on the road or had been furnished to parties at different stations along the line of said road in answer to their demands for cars to be used in shipping such stock, and it had no ears that could be taken to Millgrove for the transportation of said stock of the appellees; that cars for that purpose were furnished, and said stock was transported as soon thereafter as appellant could do so, having a due regard to the rights of other shippers and serving each in the order of their demands.
This answer presented a good defence, and it was available error to sustain the demurrer to it, unless, as contended
The statute (section 377, R. S. 1881), provides: “Under a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove.”
If it be admitted that the allegation concerning the appellant’s ability, in the first paragraph of the complaint, amounted to the converse of all that is alleged in the second paragraph of answer; yet as it was an averment which the plaintiff was not bound to prove, it was necessary for the appellant to plead specially the matter contained in this paragraph of answer.
Thé third paragraph of answer was addressed to so much of the second paragraph of complaint as charged the appellant with violation of its duty to the appellees by failure and neglect to transport their stock. Under the view just now expressed, concerning the second paragraph, the third also was sufficient.
The fourth paragraph of answer was addressed to the second paragraph of complaint, and it alleged, in substance, that on the 28th of August, 1890, when the appellees allege they demanded cars of the appellant to transport live stock, they had no live stock to be transported, nor did they have until the 30th of August, 1890; that when they delivered said stock at Millgrove and asked for transportation the appellant had no cars at that point not in use that were suitable to transport such stock, nor had it any not in use at any other point from which it could bring them to Millgrove on
The fifth paragraph was addressed to so much of the second paragraph of complaint as charged that the appellant “ promised ” to furnish the appellees cars on the 30th • of August, 1890, to transport stock to East Liberty; and it was alleged that at the time said supposed promise was made the appellees did not own, nor did they have, said stock or any of it for shipment, and that said promise was without any consideration and was void.
If a shipper’s order to a common carrier of live stock for a designated number of cars to be furnished at a station indicated on a day mentioned in the future for the transportation of such stock, be accepted by the carrier, such agreement would constitute a contract binding on the company to furnish the cars and upon the shipper to furnish the stock to load them. Missouri, etc., R. R. Co. v. Texas, etc., R. R. Co., 31 Fed. Rep. 864.
The fact that the shipper did not own or have the stock when the contract was made could not affect the question as to the liability of the carrier for failure to provide the cars for the stock presented by the shipper pursuant to the contract. It has been held that where a shipper applies to an agent for cars to be furnished at a time mentioned and at a station named it is the duty of the company to inform the shipper within a reasonable time, if practicable, whether it is unable to furnish the cars; and if it fails to give such notice, and has induced the shipper to believe that cars will be in readiness, and he, relying on such conduct of the carrier, is present with his live stock at the time and place designated and finds no cars, the railroad company is liable for damages thereby sustained by him. Ayres v. Chicago, etc., R. W. Co., 71 Wis. 372; 5 Am. St. R. 226.
The fourth and fifth paragraphs of answer were insufficient.
The judgment is reversed, and the cause is remanded with instruction to overrule the demurrer to the second and third paragraphs of answer.