Smart v. Oregon Short Line R.

183 P. 320, 54 Utah 606, 1919 Utah LEXIS 82

• Court: Utah Supreme Court
• Decided: July 8, 1919
• Docket: No. 3323
• Status: Published

Opinions

WEBER, J.

On June 1, 1917, plaintiff arranged with defendant to ship a band of sheep from Pioneer, a station on one of defendant’s branch lines in Idaho, to Cavinaugh, a station on the main line of defendant in that state. The sheep were loaded in twenty cars at Pioneer the next day, and the shipment of sheep, together with a carload of horses, left at about five p. m., arriving at the place of destination at noon on June 3, 1917, the distance being about 200 miles. At Cavinaugh there were no conveniences for unloading — nothing save a side track long enough to hold four or five cars at a time, and a temporary chute erected by the company. There was no switch engine or crew maintained at the station. Plaintiff had unloaded sheep there before, and knew all the conditions.

Upon arrival of the train at Cavinaugh eight cars- were unloaded without delay by the crew that brought the train. Later a second crew unloaded a ear of sheep and the car of horses. The sheep from these cars were then taken to a pasture a quarter of a mile from the station by the plaintiff and seven men whom he had employed to assist in unloading. This took thirty or forty minutes, during which túne the engine and crew were idle. Shortly afterwards the second crew left for Montpeliar, and no more unloading was done during the next three hours or until another freight train came along about sundown, when the engine was detached therefrom and the other ears of sheep were “spotted,” taken to the chute, and unloaded. It was about 7:30 p. m. when they started to unload these eleven cars, and the work was completed about 9 p. m. All the sheep had arrived at Cavinaugh in good condition. After dark a cold wind arose. Plaintiff testified:

"It was real cold. There were no dead sheep in the cars unloaded at night.”

According to plaintiff’s testimony, referring to the sheep that were unloaded in the evening:

“Coming off the cars where it was warm they commenced to die as soon as they were taken off; some died on the right of way in fifteen or twenty minutes; some died when they arrived at the pasture. More than fifty died.”

He further testified that if all the sheep had been taken off the ears during the daytime and before the sun had set the loss would have been nominal only. On cross-examination he testified the delay was only three hours. It took about ten hours to load the sheep at Pioneer, but whether the sheep first loaded were the ones first unloaded plaintiff did not know.

At the close of plaintiff’s testimony defendant’s motion for a nonsuit was granted by the court. From that judgment plaintiff appeals.

Plaintiff contends that there was evidence tending to prove defendant’s negligence, and that its negligence in unreasonably delaying the placing of cars in position for unloading was the proximate cause of the death of the sheep.

It was defendant’s duty to place the cars in proper position at the chute with reasonable promptness, so that they could be unloaded without unreasonable delay. If the time of unloading was unreasonably delayed by the acts of defendant, its conduct constituted negligence for which it would be liable if damage resulted. If because of negligent delay the sheep were exposed to a cold wind that caused the death of some of them, such loss would be chargeable to defendant, but if without negligence on the part of defendant the sheep died from exposure to cold plaintiff would not be entitled to recover. There was a delay of not more' than three hours. Whether want of diligence by defendant caused the delay does not appear. For some two or three hours no train was at Cavipaugh, and hence no engine could be obtained during that time for placing cars in position. There is no evidence showing that defendant could, without the abandonment of trains or without impeding transportation on its main line, have had an engine and crew at Cavinaugh during the period complained of. The mere fact of delay does not prove negligence, nor does the delay of two or three hours 1-3 in the case at bar furnish any indication that the delay was unreasonable, or that there was any want of diligence on dhe part of defendant. The sheep having arrived at Cav-inaugh in good condition, and being in good condition when taken off the cars, the burden of proof on the charge that there was unreasonable delay in putting the cars in position for unloading was upon plaintiff. The burden was also on plaintiff to prove that the defendant’s negligence was the proximate cause of the loss of sheep. It took plaintiff ten hours to load the sheep. He made no request to unload first the ears that were loaded first. He made no request of the engine crews to put cars in position for unloading while plaintiff and his men were driving sheep to the pasture. In the evening no complaint was made by him of delay. It is apparent from plaintiff’s conduct that the complaint about unreasonable delay by defendant was an afterthought only. Plaintiff had unloaded sheep at Caviuaugh before. He knew that no switch engine was kept there and that the work of switching and placing cars in position for unloading must be done with engines detached from passing trains. He knew that Cavinaugh was on the main track, and traffic could not be impeded that the unloading of his sheep might be expedited.

Was any negligence proven? We think not. Is there even a scintilla of evidence tending to prove negligence?

We think not. Is there any evidence whatever tending 4 to prove that defendant’s negligence was the proximate cause of the damage? We think not. A finding for plaintiff could have no basis save conjecture. If there were any doubt as to the inferences which should be drawn from the undisputed facts in this case, we would not approve the ruling of the district court. Being convinced that reasonable men exercising a fair judgment must arrive at the same conclusion from the facts in this ease, and that such conclusion must be that there was no proof of defendant’s negligence, we are constrained to hold that the judgment should be affirmed, with costs to respondent. It is so ordered.

CORFMAN, C. J., and GIDEON and THURMAN, JJ., concur.