8 Kan. App. 642 | Kan. Ct. App. | 1899
The defendant in error has twice recovered judgment against the plaintiff in error for loss' and damage resulting from the latter’s alleged negligence in relation to a car-load of fat hogs, numbering sixty-five, and weighing, when shipped, 17,000 pounds, which were shipped from Cheney, Kan., on January 7, 1886, under a written contract whereby the railroad company undertook to deliver the hogs to Koch’s agents in Kansas City, Mo. The first judgment was reviewed in- the case of W. & W. Rly. Co. v. Koch, 47 Kan. 753, 28 Pac. 1013, and was reversed for the reason that notice of his claim for damages had not been given by Koch in accordance with the terms of the shipping contract, which required such notice to be given in writing to some officer of the railroad company, or to its nearest station agent, “before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same to said party of the second part, and before such stock is mingled with other stock.”
On the second trial, the jury, as appears from their special findings, allowed the sum of $143.81 for the loss of hogs frozen to death ; $24.89 for “ loss of hogs crippled and frozen” ; $25.08 for “loss on shrinkage through suffering ” — the foregoing being the items of damage alleged in the plaintiff’s bill of particulars, which stated a good cause of action for damages by reason of negligence on the part of the railroad company. It was alleged that eighteen of the hogs died, on account of the negligence of the defendant company. It seems probable that on the second trial, further testimony regarding the handling of the hogs; before they were shipped from Wichita was produced! in addition to that introduced at the first trial.
On the 11th of January, Koch went to Wichita at the request of the superintendent of the defendant company to confer in regard to the hogs. He visited ‘the stock-yards and saw his hogs there. He observed that eighteen of them were dead and that a considerable number of others were badly frozen. He then went to the superintendent and demanded that the railroad company have the hogs weighed and pay him the amount of damages to which he was entitled. He urged that they be sold' by the company in Wichita,
The contention as to improper admission of. testimony is well taken, as it appears that Koch was permitted to testify as to the contents of the statement made to him by Keys & Oo., his agents, concerning the weight and value of the hogs in Kansas City. The error, however, affects only the items as to loss by shrinkage and loss from freezing and crippling.
The defendant asked for an instruction to the effect that if the jury found that a written notice had not^ been given in accordance with the terms of the shipping contract they should return a verdict for the defendant. This instruction was refused, and defendant duly excepted. The court gave an instruction which stated that the strict letter of the contract as to notice should not be applied to a case where the
As to the eighteen dead hogs for which the jury allowed 1143.81, it is clear that the jury must have found the facts as stated in said instruction, as the testimony amply justified such findings. The hogs were dead before the car was reloaded at Wichita, and the superintendent of the Wichita & Western Railroad Company was apprised of the condition of the hogs before the reshipment. Koch had declined to deal further with them. The reloading and reshipment were wholly the acts of the railroad company. Even if-it be said that Koch afterward put himself in the former relation to the shipment, it cannot be said that he thereby became charged with the responsibility of giving notice to the railroad company of a fact of which its superintendent had actual knowledge. The purpose of giving a written notice of the claim for damages in such a case has been stated by the supreme court to be that the railroad company “ may
Before the hogs were shipped by the Wichita & Western Railroad Company from Wichita over the line of the connecting carrier the plaintiff’s right of action for the loss of the eighteen hogs had accrued. We hold, therefore, that written notice of the claim for damages, as provided for in the contract, was not required, so far as the right of recovery for the eighteen hogs is concerned. As to the other two items, loss by shrinkage and loss by freezing and crippling, it is not clear that the damage in these respects had all occurred before the hogs were shipped from Wichita. The first instruction, to which we have referred, even if erroneous, was immaterial. It does not seem that the jury could have been influenced by it to reach a different decision from that which they would have reached in its absence. The incompetent testimony, as well as the instruction mentioned, relates to items other than that for the value of the eighteen dead hogs. It thus appears that a large part of the amount recovered was proper under the facts and under the law applicable thereto. But the errors mentioned will require a reversal of the judgment, unless the defend
The case will therefore be remanded to the district court of Sedgwick county, with instructions that if the defendant in error, within such reasonable time as shall be fixed by said court, assent to and accept the foregoing modification of the judgment herein, then the said judgment, as so modified, will be affirmed, and the costs in this court be equally divided between the parties ; otherwise the judgment as heretofore entered in favor of the defendant in error shall be reversed and the cause shall be set down for a new trial in the said district court.