181 A.D. 131 | N.Y. App. Div. | 1917
On April 28, 1916, the plaintiff shipped by the Adams Express Company, of which the defendant is president, a carload of twenty-six horses and two mules from Cireleville, O., to Linlithgo, N. Y. With close train connections and good management this journey might have been made within from twenty-four to twenty-eight hours. Instead thereof, fifty-five hours were consumed on the journey. When.the horses reached their destination they were in a weakened and enfeebled condition, one died almost immediately and four others died within two weeks, the evidence showing that three of them developed pneumonia within a day or two after they were unloaded.
The shipping contract releases the express company from all liability for delay or injuries to the said animals unless such delay be caused by the express company or by the negligence of its agents or employees. Under the instructions of the trial justice a jury has found that there was a negligent delay in the transportation of the horses for which the defendant is responsible and that such delay caused the sickness and death of the five horses.
The horses left Cireleville at six-forty o’clock in the evening
The plaintiff agreed to care for, feed and water the animals during transportation. Pursuant to the provisions of chapter 3594 of the act of Congress of June 29, 1906 (34 IT. S. Stat. at Large, 607), the plaintiff also requested that the period of confinement of the animals without unloading be extended from twenty-eight to thirty-six consecutive hours. This was not an agreement that the express company might consume thirty-six hours in the journey but was merely a compliance with the Federal requirement that if for any reason there was a delay, the animals might be confined without unloading for thirty-six hours. Otherwise, it would have been the duty of the express company to unload and feed them after twenty-eight hours. It is true that the plaintiff did not himself furnish the horses any food or drink, but he did, not anticipate nor was he bound to anticipate the unusual delay at Jersey City, and the unusual delay in transporting the horses from New York to Linlithgo. The express company caused .the horses to be unloaded, fed and watered at Jersey City, and five hours of the delay at that place is excused because of that fact. This action of the company in unloading, feeding and watering the horses was perhaps in deference to the Federal requirement, the thirty-six hours of confinement of the animals having expired, and perhaps was due in part to the fact that the defective car in which they were traveling made it necessary to transfer them to another car. The question, however, of the plaintiff’s contributory negligence was carefully and fully submitted to the jury by the trial justice, and they have found no negligence on his part and no question as to his contributory negligence is raised on this appeal.
Did the delay in transportation cause the sickness and
The defendant relies strongly on Haner v. Fargo (166 App. Div. 466). There is a wide difference between the two cases. In that case the plaintiff stipulated that the defendant might have thirty-six hours to make the transportation and there was a delay of only five hours beyond the stipulated period. The horses developed a highly contagious disease which must have been communicated to them before they started on their journey, and the evidence failed to show that the comparatively slight delay of five hours was responsible for this contagious disease. In the instant case there was a delay of about twenty-five hours, exclusive of the five hours at Jersey City when the horses were being fed and watered, or in other words the journey consumed approximately double the necessary time of about twenty-five hours within which it might have been made, and the disease was such that it could naturally and reasonably result from this delayed journey.
The judgment, however, cannot be sustained for its full amount. The liability of the defendant was limited to $100 for each horse. The jury rendered a verdict which included that amount for each one of the five horses which died, and $80 for the services of the veterinarian paid by the plaintiff, and $42 paid by him for other services because of the sickness of the horses, amounting in all to $622. One horse died almost immediately after being unloaded, another was sold by the plaintiff and thereafter died. These two horses were not attended by Dr. Luff and he does not claim .to know what caused their death. There is no evidence that they had pneumonia or connecting their death with the delay in their transportation. Two hundred dollars must, therefore, be deducted from the judgment.
The judgment should be modified by deducting therefrom $200 as of the date of its entry, and as so modified the judgment and order should be affirmed, without costs.
Judgment modified by deducting therefrom $200 as of the date of its entry, and as so modified judgment and order unanimously affirmed, without costs.