100 Neb. 275 | Neb. | 1916
Action to recover damages for delay in the shipment of cattle. The. plaintiff on the evening of June 23, 1913, loaded six cars of cattle at the station of Dumfries, Iowa, on the line of the Wabash railway, for transportation over that line and the line of the defendant to Chicago. The cars were transported to Council Bluffs on the line of the initial carrier, and there delivered to defendant for transportation to Chicago. Two cars reached Chicago in time for the market on June 25. The cattle in four cars, consisting of 74 head, were unloaded and fed by defendant at Clinton, Iowa, and did not reach Chicago in time for the market on June 25, but were sold the next day. Plaintiff claims damages for extra shrinkage upon these cattle, for a decline in the market price, and for the feed bill at Clinton which he was compelled to pay, amounting in all to $374.36. The defendant admitted that it received the cattle for shipment, denied any negligence or delay in their carriage, and pleaded a contract that no claim for damages should be allowed unless presented within ten days. The jury returned a verdict for the full amount claimed, and from a judgment thereon defendant appeals.
There is no proof that the claim was not presented within the time limit. Furthermore, defendant received the claim without objection on this score, and offered to pay
Defendant now contends that the 28-hour provision of this statute applies, and that a through shipment could not have been made within that time. There was no direct evidence of a request by plaintiff for confinement of the cattle in the cars for 36 hours. The instructions requested by defendant and some of the questions propounded its witnesses show that the case was tried by both parties on the theory that such a request had been made. This court will take the same position on appeal, and hence there is no merit in this contention.
No good reason has been shown by defendant why two cars went through and four cars were delayed. Plaintiff lost by the falling of the market, and was compelled to pay a feed bill of $24 at Clinton. He .also claims a loss of 30 pounds a head for extra shrinkage caused by the delay. The evidence on this point is vague and unsatisfactory. Plaintiff testifies that the cattle were not weighed when shipped, but he thought they would weigh more than 1,400 pounds. It is stipulated that the selling weight was 103,620 pounds, which is an average weight of a little over
The judgment is therefore reversed, unless plaintiff within 40 days remit $194.93 of the judgment, being the amount allowed for shrinkage.
Affirmed on condition.