Sailer v. United States Railway Administration , 47 N.D. 126 ( 1920 )

Robinson, J.

On May 16, 1919, plaintiff shipped over the Northern Pacific Railway from South St. Paul to Hazen, North Dakota, thirty-one head of cows in good condition. Five days afterwards, when the animals arrived at Hazen, their condition was terrible to behold. They were nearly starved, many of them were unable to walk or to eat. Six of them died within a few days. Five cows had calves prematurely, of which some died in the car and the others died within a few days. At Hazen a veterinary was called and tried to milk the cows that had calved, but the milk had dried up and turned to putrid matter and the cows had a high fever. The calves had not sucked them and they had not been milked. The value of the animals that survived was greatly reduced, and the jury gave plaintiff' a verdict for damages, $850, with interest from May 21, 1919. Plaintiff paid freight charges, $110.26.

To quote and book the evidence would serve only to waste time and add to the tax burdens. The parties have their copies and strangers have no interest in the matter.

. The counsel does insist that there is no evidence of negligence on the part of the carrier, but there is positive evidence to show the good condition of the animals at the time and place of shipment and showing their pitiful condition on arrival at Hazen. It shows beyond question that the carrier was guilty of very gross negligence and want of care, and even cruelty to the animals. It shows damages in excess of the verdict. The testimony is entirely convincing and the verdict is very moderate. Hence the long string of objections, exceptions, and errors assigned do merit no consideration.

In this ease there was no express contract between the plaintiff and the Director General. In the shipping bill the carrier named is the Northern Pacific Railway Company, not the Director General, who had taken control of the railway. Hence the judgment must be corrected by striking out the name of the Northern Pacific Railway Company, both in the title of the action and in the body of the judgment where-over the same occurs. There will be no judgment either against the Northern Pacific Railway Company or in its favor, and as thus corrected, the judgment is affirmed, with costs in favor of the plaintiff.

Corrected and affirmed.

Grace, J. I concur in the result.