90 W. Va. 280 | W. Va. | 1922
The defendant, the Director Geineral of Railroads, by this writ of error seeks reversal of a judgment against him for the value of certain live stock which, it is claimed by the plaintiff, died while being transported over the Chesapeake and Ohio Railroad as a result of the negligence and carelessness of the carrier.
About the first of October, 1919, the plaintiff ordered a stock car for a shipment of hogs from Ft. Spring, West Virginia, to Baltimore, Maryland. Pursuant to this order the defendant placed a car upon the tracks at Ft. Spring. The hogs for shipment were gathered by the plaintiff from various parts of Monroe county, being driven to the point of shipment from these points, ranging in distance from six to thirty miles therefrom. Th'ey reached Ft. Spring and were placed in the pens about noon on the 2nd day of October, where they were watered and fed, and were, according to the testimony of the parties who drove the hogs in, being the plaintiff’s son and another man hired for the purpose, in good condition. Later in the evening, the exact time not appearing, they were loaded into the car, and at 9:20 picked up by an eastbound freight train. The shipment reached Clifton Forge at 4:30 on the morning of October 3d. It remained there until 6 :30 on that morning when it continued its journey east, arriving at Charlottes-ville at 3:25 P. M. on October 3d- It seems that the train containing this shipment moved out of Charlottesville five minutes after it reached that station, to-wit, at 3 :30 P. M.
There is no substantial conflict between counsel as to the liability of a common carrier of live stock. It seems to.be very well established that the general rule making a carrier absolutely liable for the loss of goods entrusted to it for transportation, unless such loss occurs from the act of God or the public enemy, is qualified when applied to live itock, and made subject to the further exception that it is not an insurer against injury resulting from the inherent nature or propensities of the animals, and without fault of the carrier. And this rule in this case is still further modified by the fact that the shipment was loaded by the plaintiff, or his agent, and because thereof, under' a condition in the bill of lading authorized by the Act of Congress regulating interstate 'commerce, the shipper is liable for any injury resulting from negligence in loading the car.
The plaintiff introduced the two men who drove the hogs into F.t. Spring, who testified that they were in good condition when placed in the pens for loading. These witnesses also testify that the number of hogs with which they started was 114; that one died on the way, and that they
The court instructed the jury that the defendant would not be liable for the loss of the hogs if they believed that such loss was caused by the car being overloaded, or if they believed that the hogs died as a result of their inherent nature or propensities and without fault of the carrier. By its verdict the jury has answered both of these questions in the negative, that is, it has found that the car was not overloaded, and it has also found that the hogs did no( die as the result of any inherent propensities or weaknesses
As before stated, it seems to be well established that the measure of liability of a carrier of live stock is a little different from that of a carrier of dead freight. In the case of dead freight, there is nothing inherent in the nature thereof against which the carrier cannot protect himself. He can safely secure the boxes or packages in which the same is contained against interference, either from the freight itself, or from any other cause, except the act of God or the public enemy. In the case of live stock such is not the case. He can, of course, handle them with all of the care which is required in the case of handling any other freight, but because of the fact .that the animals have the power of locomotion and action he is not in a position to secure them against injury from each other; and, further, because of the fact that their value depends upon their being alive at the point of destination he is unable to prevent their death from causes due to their natural propensities. This doctrine is well recognized by the authorities. Maslin v. R. R. Co., 14 W. Va. 180; 4 R. C. L., title “Carriers” § 421; 10 C. J., p. 123. Recognizing this to be the law, does the evidence in this case justify the finding that the death of the 21 hogs was due to the negligence of the defendant? The evidence is clear, postive and distinct that no act was done or duty omitted by the defendant, or any of his agents, which could have resulted in injury to the animals. There is no attempt made upon the part of the plaintiff to show that such was the case, but negligence is sought to be implied from the fact alone that the hogs were dead when they reached Potomac Yards. Assuming, as the jury has found, that the car was not overloaded, and that the hogs were in good condition when placed in the car, and taking as true that the carrier handled the shipment with all reasonable dispatch, and with all reasonable care, and we must take this as true because it is proven beyond question, and the time consumed in making the trip fully corroborates, the
There is another question raised by the defendant which it is contended bars recovery, and that is that no notice of claim was given to the defendant by the plaintiff within four months from the loss of the animals, as required by a provision in the bill of lading. This contention is met by the first section of the Bills of Lading Act, being § 7976 of Barnes’ Federal Code, wherein it is provided: “That if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.” This was an interstate shipment, and is controlled by the Federal Interstate Commerce Act, and it is unnecessary ■ under that act to give the notice or make the claim within 4 months, as contended for by the defendant.
Our conclusion is to reverse the judgment, set aside the verdict of the jury, and remand the case for a new trial.
Reversed and remanded.