159 Iowa 369 | Iowa | 1913
The case in some of its features has been before us in a former appeal. Winn v. American Express Co., 149 Iowa, 259.
That the American Express Company did negligently load the said boar in said tranfer wagon with nine other crated hogs, . . . so as to shut off the free circulation of air from the said boar Statesman, . . . did negli*371 gently drive the said wagon with said boar therein over a very rough route, there being a much better and smoother route they could have selected, . . . and did negligently handle the said boar from the time they received him until he was unloaded, five minutes before his death, and failed wholly to use any care whatever with said boar; that the driver in a careless manner over the rough roads and across the said railroad tracks many and divers times did greatly shake up and jolt and'jostle the said boar, and did heat up the said boar to a dangerous temperature; that the said J. J. Ward was free from any and all contributory negligence whatever.
An amendment to the petition alleged as follows:
That defendant did not provide, on said wagon on which said boar with other hogs was loaded, any water for cooling the said boar, in case he should become dangerously hot. That said driver of said wagon did drive in the roughest part of the street from the fair grounds to the depot; there being a smoother portion that could have been used. That said defendant failed to unload said boar immediately upon its arrival at the depot, but did keep said boar on said wagon for a period of thirty minutes after said depot was reached. Plaintiff alleges that said defendant was negligent in not providing water on said wagon with which to cool said boar in case he should become dangerously hot, and in driving said wagon and contents over the roughest part of said street when a smoother part existed and could have been used, and in not unloading said boar immediately upon its arrival at said depot, and in keeping said boar on said wagon for thirty minutes after arriving at said depot.
The answer included a general denial with other defenses.
The shipper rode upon the express wagon with the driver all the way from the point of delivery to the Northwestern Depot, where the hog died shortly after arrival. The shipper testified as follows:
I was present when they loaded the hog on the wagon. I made no comment as to the manner in which the hog was*372 handled. The wagon was provided with springs, front and rear. It was what I would call a full platform spring wagon. They started as soon as my hog was put on the wagon. No one besides the driver and myself went along. The- route we took was a direct one, and we did not turn or twist. I do not know of any more direct route. We stopped the first time about three-fourths of a mile from the pavilion, at my request. He waited ten minutes or so. He had been driving at a common gait. I suggested that he drive with one wheel in the gutter, and he complied with it kindly, courteously, the best he could. He complied with every suggestion that I made, with the exception of getting water. I assented to the driver going ahead, and made a suggestion about getting water at the second stop, east of the Capitol building. There was some buildings around there. I made no effort to get water from any of the buildings. The driver drove carefully. I think he drove a little slower after the first stop than he did before. At the second stop, made at my request, we waited about ten minutes, I think. I drove down the hill, and the driver manipulated the brake. I was ready to go when we started after the second stop. I made no complaint about starting up again. During the second stop I got down and examined the hog. I did not look around for any water at that time. The hog showed a fairly good condition. I did not make any complaint of the manner in which the driver got to the depot, so far as he is concerned; but if there had been any other way possible to avoid that everlasting shaking over the street car tracks I would' have made a kick on that. ... I think we kept on down Grand avenue until we crossed the Northwestern tracks, then turned to the left. There was a series of street car tracks, I don’t know how many, . . . before we reached the depot. When we made our fourth stop, we were at the Northwestern Depot. ... I think the Northwestern tracks cross this street, Grand avenue, the one on which we were driving west; and if the depot was on the west side of the Northwestern tracks the driver had to cross the tracks to get to the depot. When he crossed the Northwestern tracks, he was on the street crossing proper. I do not think that he drove off the street. I think he was on the regular highway crossing. When he turned to the left or south after crossing the Northwestern tracks, my recollection is that he crossed a*373 double street ear track. He crossed a street ear track on G-rand avenue. I do not know whether it was a double track or a single track. Then, just as he got near the depot, he crossed a double street car track right at the end of the covered shed of some kind, which was there. I do not think that the driver got out of the wagon track at any time. I have no notion that he drove outside of the limits of the street at any time, and I do not claim anything of that kind. I simply claim that the track in the street was rough by reason of the street ear rails which the driver crossed.
The issue of negligence necessarily centers upon the specifications of the petition. The burden of proof was on the plaintiff. Colsch v. Railway Co., 149 Iowa, 176; Mosteller v. Railway Co., 153 Iowa, 390.
We have read this evidence with much care, and we reaeh
It is urged that the express wagon should have carried with it a supply of water for that purpose. It is not contended that such facilities are usually or ordinarily provided by express wagops, or that they are usually or ordinarily necessary. The substance of the contention is that,- because of heat of this particular day and the condition and size of this particular animal, such provision ought to have been made. If such provision for this particular occasion ought to have been foreseen, it was as apparent to the plaintiff as to the defendant. The shipper could at least have used water upon the hog immediately before loading him. Tie- did not appear to have deemed it necessary. The driver of the wagon complied with his every request and suggestion. He stopped when he asked him to stop and started again only with his approval. They passed
We think the order of the trial court was proper; and it is accordingly Affirmed.