153 Iowa 695 | Iowa | 1911
Plaintiff shipped two car loads of hogs over defendant’s road, one from Webster City, and the other from Wilke, to Chicago, the two cars being contained in the same train; and, when the cars reached their destination, some of the hogs were found to have died, according to plaintiff’s allegations, as the result of excessive heat. The specific charges of negligence on which plaintiff asked to recover damages for his loss were -that during transit, the day being very hot, the defendant left the train containing these two oars of hogs standing for several hours near Cedar Falls in a deep cut, where no breeze could reach them, and that notwithstanding notification from plaintiff that the animals were suffering from heat, and the request of plaintiff to defendant to move its train out of said cut to some place where the breeze could reach the animals so as to prevent injury to them from the excessive heat, defendant neglected and refused to move said train or to protect said stock or to furnish any relief for a long time thereafter, and that the injury resulting, could have been prevented by the exercise of ordinary care on defendant’s part, and was not due to any negligence or carelessness on the part of the plaintiff. The defendant denied the allegations of negligence. Plaintiff then amended his petition by alleging that plaintiff delivered to defendant, the hogs referred to, in good, sound, healthy condition, and that, when the cars containing the animals arrived at their destination, a certain number of the hogs were dead, and those not dead were greatly shrunk in weight, and were sick and in bad condition, and that the death and unusual shrinkage and sickness referred to occurred while the hogs were in defendant’s care and being
During the introduction of the evidence, and in' connection with the testimony of one Lloyd Bickford, who said that he accompanied the stock as- the agent of plaintiff until the train reached Waterloo, which is east of Cedar Falls on defendant’s line of road, where he got off the .train in which the hogs were being transported, to eat dinner, and there missed the train on which the hogs were carried from Waterloo to Chicago, taking another train for that destination. The contract of shipment between plaintiff and defendant, signed also by the witness as the person in charge of and accompanying the stock, -was offered in evidence, describing the car of hogs shipped from Webster City; and another contract in the same form, but signed by another person as the person accompanying the hogs, relating to the car load shipped from Wilke, was also introduced. In these contracts it wTas provided that the cars were to be in charge of the shipper or his agents while in transit, that the shipper assumed the duty of loading and unloading, and that the defendant company would not be liable for any loss or damage to the stock caused by héait or suffocation or for any loss or damage, however caused, nor resulting from gross negligence of defendant, and, further, that the shipper would at all times take care of the stock at his own expense and risk, free transportation being given to the shipper or his bona fide employee in charge of the stock for that purpose. At the conclusion of the evidence, defendant offered an amendment to its answer to
The principal complaint on behalf of appellant is as to the giving of instructions in which it was assumed that the amendment to plaintiff’s petition alleging that the hogs were alive and in good, sound, healthy condition when delivered to defendant for shipment, and that, when they arrived at their destination, some'of them were dead, and t'he others greatly shrunk in weight and sick and in bad condition, such loss and damages occurring while the hogs were in defendant’s care during transportation, stated an independent cause of action, with reference to which the jurors were instructed that proof of the fact alleged by a preponderance of the evidence would require a' verdict in favor of plaintiff unless the jury should “find that the defendant has established, by a preponderance of the evidence, its second defense, in which event your verdict should be 'in favor of the defendant;” the second defense being that the plaintiff was in charge of the stock during shipment, and that any loss occurring during said shipment,
In the case of Colsch v. Chicago, M. & St. P. R. Co., 149 Iowa, 176, finally decided in this court after the trial of -the present action in the lower court, it was held that for injuries resulting to live stock during transportation, by reason of changes in temperature, the common carrier is not liable as an insurer, but only for negligence; and that if the owner or his agent accompanies. the stock, the burden is on him to show that negligence of defendant occasioned the injury, and that in such cases no presumption of negligence arises merely from proof of the fact of loss or damage, the shipper in charge of the stock during transit being presumed to know the cause of such loss or damage as well as the carrier. On the other hand, the rule is recognized in that case that, if the shipper or his agent does not accompany the stock in charge of it, the burden rests upon the carrier, which alone is presumed under such circumstances to have knowledge of the fact to prove by a preponderance of the evidence that the loss or damage did not result from any cause attributable to defendant’s negli
Other alleged errors in the trial of the case are relied on for appellant, but, if the case is retried in accordance with the rules indicated in this opinion to be applicable to it, the errors complained of, if indeed in these other respects errors were committed, are not likely to occur and further discussion would be of no advantage.
The judgment must be reversed.