79 Neb. 175 | Neb. | 1907
Lead Opinion
The plaintiff had judgment for the value of a stallion, which it is charged died through the neglect of the defendant in transportation. The substance of the complaint is that the plaintiff delivered the stallion to the defendant in the city of Lincoln to be transported to Mexico City, Missouri, on a fast train due to leave Lincoln at 6 o’clock P. M. on December 14, 1904; that by direction of the defendant the stallion was loaded into the car at 5 o’clock P. M. of that date, but through defendant’s neglect the car was not attached to the train leaving Lincoln at 6 o’clock P. M., but was detained in the yards until 10:45 o’clock P. M. of that date, when it was attached to another train, and was delayed in transportation £o that it did not reach Kansas City, Missouri, until about 5 o’clock A. M. of December 16, that the defendant negligently and unlawfully failed and refused to unload the horse to be rested, fed and cared for during the entire journey from Lincoln to Kansas City, and kept the horse
J. R. Jones, an employee of the plaintiff, accompanied the animal as a caretaker, and it is disclosed from his testimony that the horse was shipped in a bos car suitable for the purpose. He provided bedding, hayand grain for the journey, and personally attended to furnishing the horse with water. There is no dispute that a horse might be confined in a car during- a journey of from a Aveek to ten days without danger on account of confinement alone, if otherwise well cared for^ There was no request that the horse should be unloaded en route, and no evidence that his condition required it. When facts are disclosed from Avhich it appears than an animal has not suffered through the neglect of a carrier intrusted with its transportation, the rule that such carrier is an insurer of
Several elements enter into the consideration of the charge of delay at Kansas City. The shipping contract was for the transportation of the animal from Lincoln, Nebraska, to Mexico City, Missouri, by Avay of Kansas City. From the latter point the route Avas over the Alton. There is little substantial conflict in the evidence as to what occurred in Kansas City, where Jones arrived with the horse at 5 o’clock in the morning of December 16. The train on AAdtich the shipment was to be made over the Alton was due to leave at 1 o’clock P. M. It appears to have been incumbent on the defendant to transfer the car from its own yards to those of the Alton. This Avas done at about 12 o’clock M. In the meantime Jones discovered that the horse was chilled. He called a veterinary surgeon, and it Avas determined to have the animal unloaded and placed in a veterinary hospital for treatment. He went to the Alton freight office to arrange for that course, and says he was there shortly after 12 M., Avhen the way bill came into that office from the hands of the defendant's agent. After some parley-at the Alton office Jones se cured a release of the animal from that company, and went from there to the freight office of the defendant, according to his testimony, at 1:20 o’clock P. M., Avhere he paid the freight to Kansas City, and requested that the car be placed so that the animal might be unloaded. The car, however, was not returned by the Alton to the defendant’s yards until about 1: 30 P. M., and, according to the plaintiff’s evidence, was not placed by the defendant so thal the animal could be unloaded until 7:10 P. M. The delivery of the animal-to the Alton by the defendant was
As we view the case, the cause of the death of the ani
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.
Reversed.
Rehearing
This case is before us on rehearing. Appellee had judgment in the court below for the value of a thoroughbred stallion, which, it is charged, died through the neglect of appellant in transportation. The former opinion, ante, p. 175, clearly states the allegations contained in plaintiff’s petition, For answer the defendant alleged that the destination of the horse so shipped over its line of railroad was Mexico City, Missouri, on the Chicago & Alton Railroad, with which its line connected at Kansas City, Missouri; denied plaintiff’s ownership of the horse, and called for proof thereof; alleged that it was part of the contract of shipment that plaintiff was to furnish a caretaker of said horse, who should go along with the same and look after and care for it and give it proper and necessary care and attention, and that said agent of plaintiff did accompany and give attention concerning the handling and care of said horse; that plaintiff did not deliver the horse to defendant in time to be carried any faster, or to be delivered to the connecting carrier at Kansas City any quicker than the same was carried and delivered; that the shipment was made without any unusual and unnecessary delay, and was promptly delivered on time, in the regular course of business, to the connecting carrier, the Chicago & Alton Railroad at Kansas City, without any fault or negligence on the part of defendant, its agents or servants; that, if said horse in said shipment referred to sustained any injury, such injury was not caused by any fault or negligence on the part of defendant, nor while the horse was in its possession, but, if any injury was sustained by it in any way, the same was the result of the plaintiff’s own negligence and that of his agent in charge of said horse, and without fault of the defendant; adding a general denial. The plaintiff’s reply was a general depial.
As to points 1 and 2, the evidence is decidedly conflicting. As to the third point, there is no conflict in the evidence. The caretaker of the horse, who went with it and took care of it on the trip, was one J. R. Jones, who, it appears from the evidence, was an entirely competent person for such a charge. The evidence shows that at the time of the shipment, December 14, 1904, appellant had two freight trains leaving Lincoln for Kansas City; one, No. 120, a fast through freight, which also carried passengers and express, being scheduled to leave Lincoln at 6 P. M., and the other, No. 110, a slower freight, scheduled to leave at 7 P. M. No. 120 left Lincoln that evening on time. No. 110 left 3 hours and 55 minutes'late; viz., at 10:55 P. M. Appellee testifies that, when he made arrangements Avith the agent of appellant for shipping the horse, it was with the understanding and agreement that the horse should go on No. 120. This part of his testimony is corroborated by appellant’s employee with whom he had' the transaction. Appellee also testifies that he was advised by appellant’s employee that if the horse was loaded by 5 o’clock it would be in time for that train. This is
Train No. 120 left Lincoln that evening on time at 6 P. M., but the car in which the horse had been loaded Avas not attached to that train. The car was attached to train No. 110, Avhich, as before stated, did not leave Lincoln until 10: 55 P. M. Train No. 120 arrived in Kansas City early in the forenoon of the next day, December 15, Avhile train No. 110 did not reach Kansas City until 4: 50 o’clock of the second morning after shipment, December 16. Train No. 110 was delayed en route for nearly tAvo hours at Table Rock, and did not arrive at St. Joseph until about noon on the 15th. The car Avas then placed on a side track, and remained there until a feAV minutes after 11 o’clock that night — a delay of about 11 hours. It reached Kansas City, as stated, at 4:50 o’clock the next morning. On arrival there, Jones, the caretaker, Avent to the Alton freight house to ascertain what time they could get away from there. He was advised by some man there that he Avould have to come back after the day man came on, which would not be very long. He then Avent back to the car and fed and Avatered the horse. He says the car Avas then standing between the Burlington and Alton freight depots. After feeding the horse he went and got
Defendant’s witnesses testified that the car was delivered to the Alton at 12:15 and left on the Alton tracks. Jones says it was never moved after 11 A. M. until after the night man came on duty in the evening. Defendant’s general yar dm aster, who was examined as to the transfer of cars from the Chicago & Alton tracks, testified that such transfers could only be made between the hours of 11 A. M. and 4 P. M. He said: “On account of us having to go through the Union depot, and over the Union depot property, they .will not allow us to deliver transfers only during those hours.” Yet the chief yard clerk testified that the car was received back from the Alton at 4:15. If they were not allowed to deliver transfers after 4 o’clock, the jury may well have discredited the testimony
The evidence further shows that during the night prior to the arrival of the horse in Kansas City the weather changed and began to grow colder. During the forenoon some snow fell, but Dr. Moore testifies that the snow had dried off. He says: “When I was down at the car, it was a fairly cold day, a little cloudy. It had been snowing in the forenoon and had dried off. The streets were comparatively dried off when I was at the depot, and remained dry until probably about 4 o’clock in the evening.” Jones also testifies that the weather was good that day until about 4 o’clock in the evening. About 4 o’clock it began to snow1 and sleet, and from that time on until after the arrival of the horse at the hospital the storm seems to have been more or less continuous. Jones testified that, when the horse came off the car, he acted fairly well; did not show anything near the distress that he did farther on on the trip. They led the horse behind a buggy to the hospital, a distance of about two miles, during the storm above referred to. When they reached the hospital the horse was bleeding at the nose, and showing great distress and exhaustion. Dr. Moore says that at that time his case was hopeless. The next day the horse died. On cross-examination Dr. Moore was interrogated by counsel for appellant as to whether or not there were stables near the depot to which the horse might have been taken: “Q. There are good barns? A. Fairly good barns; but they are
Appellant insists that the taking of the horse through the streets of Kansas City for a distance of two miles to the hospital in the storm was such negligence as precludes a recovery in this case. Appellee insists that it was not negligence; and, to our minds, this is the really important question in this case. This point, it seems to us, must be determined by the rule of what a reasonably prudent man would have done in Mr. Jones’ situation, under the surrounding circumstances and conditions. We think that was a question for the jury. It was for the jury to say whether or not a reasonably prudent man, under those circumstances, would have followed the guidance of the veterinary surgeon, whom he had employed, and have taken the horse to the hospital, as Jones did, or whether a reasonably prudent man, under those circumstances, would have refused to take the horse, and have sought shelter for him in some of the other stables in that neighborhood. On a careful reading of the entire record, and a
We recommend that the former judgment of this court be vacated and set aside, and that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing-opinion, the former judgment of this court is vacated and set aside, and the judgment of the district court is affirmed.
Judgment accordingly.