Wooster v. Chicago & Northwestern Railway Co.

167 Wis. 6 | Wis. | 1918

SibbeceeR, J.

The contract between the plaintiff and the defendant specifies that defendant received the horses from the plaintiff in an “Arms palace car” at Rhinelander and that they were “to be delivered to A. T. Wooster at Allentown fair grounds, Allentown, Pennsylvania.” There is no dispute of the facts that the car with the horses was not delivered at the Allentown fair grounds and that the car with the horses was left by the delivery carrier, the Philadelphia & Reading Railway Company, at the Allentown station, seven miles from “Allentown fair grounds.” It also appears that plaintiff was compelled to engage the Lehigh Valley Railway Company to have the car with horses transported from Allentown station to “Allentown fair grounds,” the place of destination and delivery fixed in the contract, and that he was required to pay the sum of $18.20 for such service. This state of facts permits of but one inference, namely, that the defendant failed to deliver the shipment at “Allentown fair grounds” as it had contracted to do, and that the plaintiff, by reason of such breach of contract by defendant, sustained the damage of $13.20 which he incurred as cost for securing delivery of the car and horses at the fair grounds.

This recovery is not a claim for an extra charge for mis-routing under the provision of the interstate commerce acts, but is one for damages caused by defendant’s breach of its contract for failure to deliver the shipment at the place of destination specified in the contract. Under these facts and circumstances the defendant is liable for breach of contract which is enforceable in the state courts. Atlantic C. L. R. Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164; Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205.

It is contended that the court erred in holding that the evidence permitted of the inference that the defendant was guilty of a want of ordinary care and diligence in delaying shipment of the horses at Rawson, Wisconsin. The record shows that the car arrived at Rawson about 5 o’clock in the morning, and that the first section of the fast freight for hauling freight of this kind to Chicago left Rawson at about 5:45 a. m. and that the second and slower section left Raw'son at 10 a. m. The evidence tends to show that the difference in time of leaving Rawson and arriving in Chicago between the first and second sections of this freight resulted in preventing this shipment being sent out of Chicago on a fast freight in the evening of that day and in placing it upon a slower train out of Chicago, which prolonged the trip on the road from Rawson to destination about thirty-six hours. The court submitted to the jury the inquiry, “Did the' defendant negligently delay the forwarding of plaintiff’s horses at Rawson ?” and instructed them that

“It is the duty of the defendant to exercise a degree of care in moving freight suitable to the nature of the property and forward it with reasonable promptness and dispatch to the extent of its ability,” and “In case of live stock a railroad company is bound to use more expedition than in case of ordinary freight, if such may be used in reason under the circumstances existing, because of its nature and character known to both parties at the time the shipment is made. . . . The fact that there were other cars placed for forwarding at Rawson when the first section of the freight picked up fourteen cars, and that the plaintiff’s car was not so placed, does not excuse the delay or excuse the nonforwarding by that train, if it appears to you that by reasonable diligence plaintiff’s car might have been included with the string picked up or that by reasonable effort and diligence otherwise on the part of the servants of the defendant the same would have been forwarded on-such train.”

The very nature and character of live-stock shipments requires a degree of attention, care, and diligence different from a shipment of dead freight. This is clearly recognized by the court’s instruction in submitting the foregoing inquiry to the jury. We are persuaded that the evidence upon this phase of the case presented an issue for determination by a jury and that the court submitted it to them with a correct statement of the law applicable thereto. The court properly determined upon the verdict rendered that the defendant is liable for any damages proximately caused by the negligent delay in forwarding plaintiff’s horses. The contract of shipment limits defendant’s liability to the declared valuation of $100 for each horse, and if they are injured from negligence of the defendant “the liability of said railroad company shall not exceed said valuation.” It is contended that the evidence fails to show that the delay in shipment caused the plaintiff’s horses any damage. The evidence on the subject is not free from conflict, and the inferences to be drawn from the. facts bearing on this question are not so manifest and clear that it can be held to be a pure question of law for determination. by the court. We think the issue was properly left to the jury for determination, and their conclusion that the plaintiff sustained damage as the result of the defendant’s negligence cannot be disturbed. The trial court held that the contract of shipment limits the amount of recoverable damages 'to each animal injured to $100, and that the evidence fully sustains the conclusion that the two stallions were damaged in the sum of $100 and that the sum of $25 would compensate plaintiff for care of their injuries and such care as the other horses required and for sums expended by plaintiff for medicines. The court reduced the jury’s award accordingly. The plaintiff does not object to this reduction of the amount of damages found by the jury. It is considered that the evidence is sufficient to show that the horses were injured, and the court’s determination of this question must stand. We find no reversible error in the record.

By the Court. — The judgment is affirmed.