Comer v. Columbia, Newberry & Laurens R. R.

29 S.E. 637, 52 S.C. 36, 1898 S.C. LEXIS 67

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

The plaintiff, in his complaint, sets forth two causes of action. As to the first, the allegations are: 1st. That the defendant is a corporation, doing business as a common carrier, in the transportation, by railroad, of goods, wares and merchandise between Columbia, South Carolina, and Clinton, South Carolina. 2d. That the Georgia, Carolinaand Northern Railroad Company is likewise engaged in the transportation of goods through the State of South Carolina, making a connection with the defendant company at Clinton; that on the 26th of November, 1895, the plaintiff delivered to the said Georgia Carolina, and Northern Railroad Company, at Comer, in the State of Georgia, thirty-eight head of cattle, to be transported over its road to Clinton, and there delivered to the defendant company, to be by it transported to Columbia, and there delivered to the South Carolina and Georgia Railroad Company, or to some other connecting line, for transportation to Charleston, S. C.; that the said Georgia, Carolina and Northern Railroad Company transported the said cattle to Clinton. and there delivered the same to the defendant company on the 27th of November, 1-895; that the defendant company then and there received said cattle, as a common carrier, and transported the same to Columbia, where they were delivered to the South Carolina and Georgia Railroad Company, for transportation to Charleston. 3d. That the defendant company, “after receiving said cattle for transportation as aforesaid, and while the same were in their possession, care, and custody, negligently and carelessly, and regardless of their duty to the plaintiff as a common carrier, kept the said cattle confined in cars, without unloading the same for rest, and without watering and feeding them,” for a period of forty-two consecutive hours, including the time during which they were confined without rest and without food and water by the Georgia, Carolina and Northern Railroad Company; that defendant, when it received the cattle from the Georgia, Carolina and Northern Railroad Company, well knew the time they had been confined in the cars of said last mentioned company without rest, food or water; and that by reason of such carelessness and negligence on the part of the defendant company said cattle were injured and damaged to the amount of $140.96.

The allegations in support of the second cause of action were: 1st. Practically the same as the first allegation upon which the first cause of action was based. 2d. After the same allegation, as to the Georgia, Carolina and Northern Railroad being a connecting line with the defendant company at Clinton, as is made in reference to the first cause of action, proceeds, substantially, as follows: that on the 19th of February, 1896, the plaintiff delivered to the Georgia, Carolina and Northern Railroad Company, at Athens, in the State of Georgia, thirty-two head of cattle, to be transported to Clinton, and there delivered to the defendant com pany, to be by it transported to Columbia, and there delivered to the South Carolina and Georgia Railroad Company, or some other connecting line1, for transportation to Charleston; that the said Georgia, Carolina and Northern Railroad Company transported said cattle to Clinton and there delivered the same to the defendant company on or about the 20th of February, 1896; that the defendant company then and there received said cattle, as a common carrier, for transportation to Columbia, to be by it there delivered to a connecting line for transportation to Charleston; and that defendant company thereafter, at Columbia, delivered the cattle to the South Carolina and Georgia Railroad Company which were by it transported to Charleston. 3d. That the defendant company, after receiving said cattle for transportation as aforesaid, “regardless of their duty to the plaintiff as a common carrier, negligently and carelessly handled the said cattle while upon its cars, and negligently and carelessly confined the said cattle in cars without unloading the same for rest, and without watering and feeding the same, and by reason of said careless and negligent conduct of the defendant,” some of the cattle were injured, to the damage of the plaintiff $50.

The defendant, by its answer, sets up two defenses. For a first defense: 1. It admits the allegations contained in the first paragraphs of both causes of action, and admits that the Georgia, Carolina and Northern Railroad Company is a corporation and operates a line of railroad, as alleged in the complaint in reference to both causes of action. 2. It denies each and every other allegation contained in the complaint. For a second defense: 1. It makes the same admissions as are made in the first paragraph of its first defense. 2. It admits that the carload of cattle referred to in the statement of the first cause of action was delivered to defendant at Clinton about the day stated in the complaint. 3 It denies each and every other allegation contained in the complaint, and it alleges that the Said carload of cattle was duly delivered by defendant to the Atlantic Coast Fine, “within the time prescribed by law, for transfer to the city of Charleston.”

The case came on for trial under the pleadings, as above stated, before his Honor, Judge Aldrich, and a jury. At the close of the testimony on behalf of the plaintiff, a motion for nonsuit was made, and refused. At the close of the testimony, the Circut Judge charged the jury as is set forth in the “Case.” A copy of the charge will be embodied in the report of this case. The jury rendered a verdict in favor of the plaintiff for $190.96, and judgment having been entered thereon, the defendant appealed, upon the Several exceptions set out in the record, which will also be embodied in the report of this case.

1 The first, second, and third exceptions impute error to the Circuit Judge in refusing defendant’s motion for a non-suit as to the first cause of action, but there is no exception to the refusal of the nonsuit as to the second cause of action. The first ground is: “That there was an entire failure of evidence of the length of time that the cattle were in the custody of the defendant company, and that the defendant company ever had knowledge that the shipment was intended to go over the South Carolina and Georgia Railroad.” There was certainly some evidence as to the time the cattle were in the custody of the defendant, for the plaintiff testified that the cattle were put on board the car of the Georgia, Carolina and Northern Railroad, at Comer, about 5 o’clock in the afternoon of the 26th of November, 1895, and that such car would be due at Clinton about 7 o’clock of the next morning; and the next we hear' of them is that they were seen in the car in the yard — not the stock yard — of the Atlantic Coast Pine at 9 P. M. of the 27th of November, 1895; that the next seen of the cattle was in the same car, about 1 o’clock in the morning of the 28th of November, when it was standing at the Atlantic Coast Pine chute; again the cattle were seen in the same car, still standing at the chute of the Atlantic Coast Pine stock yard, still unloaded; and, finally, the cattle were delivered to the South Carolina and Georgia Railroad Company about 10.56 of the same morning. There was also •testimony tending to show that Moore, the manager of the stock yard of the South Carolina and Georgia Railroad in Columbia, was requested by the plaintiff to look out for the cattle when they arrived and provide food for them in his stock yard; that Moore did so, and visited the yard of the Atlantic Coast Rine for the purpose of ascertaining whether the cattle had arrived; that he found them, about 9 o’clock P. M., in the yard — not the stock yard — of the Atlantic Coast Rine; notified Whittaker, the yard master of the Coast Rine, that the cattle were billed by the South Carolina and Georgia Railroad, and desired to know when they would be delivered to his company, and that they were not delivered until 10.56 the next morning. This witness, Moore, also testified that the defendant company had no stock yard in Columbia, and that cattle brought to Columbia by the defendant company, when billed to the South Carolina and Georgia Road, would be delivered to that road through the Atlantic Coast Rine yard, by the shifting engine of the Atlantic Coast Rine Road. Besides, the bill of lading for these cattle issued by the Georgia, Carolina and Northern Railroad Company, which was offered in evidence by the plaintiff, had written across the face in red ink a memorandum to the effect that the cattle were watered and fed and loaded at 5 P. M. of the 26th of November, 1895, destined for Charleston, via defendant’s line and via the South Carolina and Georgia Railroad. These facts certainly tended to show both of the facts of which it is claimed there was no evidence. It must be remembered that sec. 1678 of the Revised Statutes, forbidding a railroad company entrusted with the transportation of animals from keeping such animals confined in cars for a longer period than twenty-eight consecutive hours, except in certain contingencies not pertinent to this case, expressly provides that the time during which the animals have been confined without rest on connecting roads from which they are received shall be in- eluded, in estimating the time of such confinement; and, therefore, the point here was not how long the animals had been confined in the cars without rest, food or water by the defendant company, but how long they had been so confined by defendant and its connecting road. Of course, it must be assumed that defendant company knew how long the cattle had been confined in the cars of the Georgia, Carolina and Northern Railroad Company, from whom it received the cattle, as otherwise the defendant company would not know how to discharge its duty under the provisions of the section of the Revised Statutes just referred to; for it could not otherwise know how long it would be safe for it to keep the cattle confined in its cars. There being some testimony tending to show that these cattle were so confined for a longer period than twenty-eight hours, and also some testimony tending to show that the defendant knew that the shipment was intended to go by the South Carolina and Georgia Railroad, whether sufficient or not, is not material in considering a motion for nonsuit. The first exception must be overruled.

2 The second exception makes the point that plaintiff’s evidence showed that defendant company did deliver the cattle within twenty-eight hours to the Atlantic Coast Tine, a line of railroad connecting defendant’s line with the city of Charleston; and was, therefore, not guilty of the negligence alleged in the first cause of action. This exception must, likewise, be overruled, as the testimony above mentioned tends to show that the cattle were never delivered to the Atlantic Coast Tine Railroad for transportation to Charleston; but, in fact, were delivered for such purpose to the South Carolina and Georgia Railroad; and that the yard and shifting engine of the Atlantic Coast Tine Road were merely used by'defendant company for making such delivery — it having no facilities of its own for such purpose.

3 The third exception makes the point that plaintiff’s evidence showed that the cattle wrere shipped under a special contract, by which plaintiff assumed the duty of loading and unloading, feeding, and watering the cattle; and if there was any failure in the performance of this duty, it was the fault of the plaintiff himself, and hence he could not recover. This exception ignores the express provision of the section of the Revised Statutes above referred to, by which the railroad company, in case of default of the owner of the cattle in performing this duty, is required to perform the same at the expense of the owner, giving the company a lien on the cattle to reimburse itself for such expense; and it also ignores another provision of the special contract, that the railroad company is required to furnish the owner with all proper facilities for taking care of the cattle. This exception must, therefore, be overruled.

The fourth exception does not seem to be pressed in the argument of counsel for appellant, and hence need not be considered. We may say, however, that even if pressed, it could not be sustained. We see nothing in the pleadings or in the testimony upon which the exception could be based. It is not alleged that the cattle were injured by being gored or trampled upon by the others, and we find no testimony upon, that point. Besides, we see nothing in the special contract upon which to base this exception; for there was no provision that the carrier should not be liable for injuries caused by the goring or trampling upon some of the cattle by the others. Indeed, there was no necessity for such provision; for the case of Bamberg v. N. C. Railroad Co., 9 S. C., 61, shows that a carrier of live animals is not liable for damages occasioned by the inherent character or propensities of the animals. We are not prepared to say that the Judge erred in the limitation which he put upon the defendant’s request. But, as we have said, the question does not properly arise in this case, and need not, therefore, be decided.

4 The fifth, exception seems to make the point that a mere failure on the part of the railroad company to furnish the necessary facilities to the plaintiff to enable him to perform the duty assumed by him, under the special contract, of feeding and watering and otherwise taking care of the cattle, would not subject the company to liability, but that'there must be a wanton refusal on the part of the company to furnish the necessary facilities. We cannot accept that view, for there is nothing in the terms of the special contract, or in the statute, or in the nature of the case, which would warrant such a requirement.

The sixth and tenth exceptions both impute error to the Circuit Judge, in indicating to the jury that there was no obligation on the plaintiff to look after the cattle at points where the cars containing them were transferred to a connecting line of railroad. These exceptions are based upon a misconception of the Judge’s charge; and we think a reading of the charge as connected with the colloquy between the Court and the counsel at the close of the charge, is quite sufficient to vindicate the charge from the error imputed to it. These exceptions must, therefore, be overruled.

The points raised by the seventh exception are disposed of by what has already been said. Practically, the plaintiff’s case was based upon the theory that his cattle entrusted to the defendant for transportation, were kept confined in cars without rest, food or water for a longer period than that prescribed by law; and that while, under the special contract, it was the duty of the plaintiff to attend to the resting, feeding, and watering of his cattle, it was at the same time the duty of the defendant to afford plaintiff the necessary and proper facilities for so doing; and the defendant having neglected to perform its duty, whereby the plaintiff was unable to perform his, the defendant was liable for the damages sustained by the result of such negligence. We do not, therefore, see that there was any error in modifying defendant’s fourth request, and we do not see that the issues presented by the pleadings. were changed by such modification.

5 The eighth exception really presents a point already dis posed of. The modification of defendant’s seventh request, especially when qualified as it was, cannot be regarded as error. If the plaintiff discovered that his cattle were suffering while in transit, it was clearly his duty to provide for them'; but it was, at the same time, the duty of the defendant to afford him the necessary facilities for doing so. If it was necessary to unload the cattle at Newberry, where there was a stock yard, into which the cattle could have been unloaded and taken care of, it was the duty of the defendant company to afford the necessary facilities for that purpose, “provided in doing so it did not delay their trains;” and the modification, qualified by the words which we have put in quotation marks, was unexceptionable.

The ninth exception raises two points: 1st. That the Judge left it to the jury “to determine what was the binding force of the written contract in evidence,” by which is meant, as we learn from the argument of counsel, that he left a question of law to the jury. We do not so understand the language of the Circuit Judge. He read the contract to the jury and instructed the jury that, under that contract, it was the duty of the defendant to afford the plaintiff proper facilities for unloading the cattle, and resting, feeding, and watering them, provided the company in doing so did not delay their trains; and he left the question of fact to the jury as to whether defendant had performed its duty as thus explained to them. The second point raised by this exception is that, by his modification of the seventh request, the Circuit Judge instructed the jury that the defendant would be liable in the present action for a breach of a contract not alleged in the pleadings. This point has been disposed of by what has already been said.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.