Kansas City, Memphis & Birmingham Railroad v. Heard

39 So. 1011, 87 Miss. 378

Opinion

Harper, Special L,

delivered the opinion of the court.

*

This is an action of tort, brought by J. W. Heard against the Kansas City, Memphis & Birmingham Railroad Company for its failure to deliver safely certain cattle intrusted to it for shipment from Sulligent, Ala., to New Orleans, La. There was judgment in the lower court for the plaintiff, and the defendant appealed.

The proof for the plaintiff tended to show that he delivered to defendant one hundred and twenty head of cattle, consisting of calves, yearlings, and cows, for shipment; that when the cars were delivered to the Mobile & Ohio Railroad Company at Tupelo there were twenty-five missing, five dead, and many of tbe remainder seriously bruised, scarred, and otherwise injured. Tbe defendant undertook to show by its employes that it had exercised due care; that it delivered to the connecting line all the cattle intrusted to it, and that they were in good condition when so delivered. The defendant also offered in evidence a bill of lading, containing provisions as follows: “(1) The shipper hereby agrees that he will select the car or cars to be used for transportation of sucb stock, and before making such selection he will carefully examine and inspect the same, and each one of them, and will only select such cars as are in good and suitable condition, and after such stock is loaded and before the same leaves the first station above named he will again examine said car or cars, and will see that all the doors and openings in said cars are closed, and so fastened, and afterwards kept so closed and fastened, as to prevent the escape of said stock therefrom, and that he will at once notify the company of any defect in the floors, doors, fastenings, ox slats on said caxs, and the manner in which such doors or slats are placed upon or attached thereto, and in ease of finding any such defect will demand in writing another car or cars in lieu of such car or cars so found defective. . . . (3) For the consideration aforesaid, it is further agreed that neither the company nor any connecting carrier shall be responsible for any damage or injury sustained by said live stock, by reason of any defect in the cars used in the transportation thereof, in consequence of the escape of the said live cattle through the doors and openings in said cars, or by reason of the stock being, wild, unruly, weak, maiming each other or themselves, or from fright of animals, ox from crowding of one upon another, or from heat or suffocation, whether caused by overloading of said cars or otherwise.” The defendant also offered evidence that tended to show that the cattle were poor and in bad condition when shipped, and that too many had been crowded into the cars. Whereupon the plaintiff offered proof which tended to show that he had performed everything required of him in the foregoing provisions of his contract, that the cattle were in fair condition for shipment, and that the cars were not overcrowded.

The defendant asked and obtained an instruction as follows: “(3) The court charges the jury that, if they believe from the evidence that the injury to plaintiff’s stock was the result of their poor condition and overcrowded cars, then there can be no liability on the defendant, and the jury will find for the defendant.” The main effort of defendant in the court below seemed to be to show by its employes that all the cattle it had received had been delivered to the connecting carriers and that they were in good condition when so delivered. There was no effort to show how the loss and injury of the cattle occurred, for that was denied. There was some proof that the cattle were in poor condition for shipment, and that if there were one hundred and twenty head of cattle in the two cars, as claimed by plaintiff, such would have been an overloading. But plaintiff’s evidence contradicted this, and was properly submitted to the jury, who found for plaintiff. In the very case cited by appellant—Chicago R. R. Co. v. Abels, 60 Miss., 1023—this court said: “The carrier must show full performance of duty with respect to what was shipped according to its nature, and when that showing is made, and that the injury was from an excepted cause in the contract, liability cannot be fixed on the carrier, except by proof of a want of due care and diligence.” In the instant case the defendant failed to show “that the injury was from an excepted cause in the contract” to the satisfaction of the jury, and hence the defendant failed to overcome the prima facie case made out by the plaintiff. The other errors complained of by appellant seem to be without merit.

The judgment of thedower court is therefore affirmed.

Chief Justice Whitfield, because of illness, did not preside in this case. William R. Harper, Esq., a member of the supreme court bar, was appointed and presided as special, judge in place of the chief justice.