DocketNumber: No. 17156
Citation Numbers: 122 Wash. 136
Judges: Main
Filed Date: 11/2/1922
Status: Precedential
Modified Date: 8/12/2021
— This was an action to recover damages to two cars of stock, consisting of forty-six mules and three horses. The case was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $1,000. At the conclusion of the plaintiff’s evidence, and again at the conclusion of all the evidence, among other things, the defendant moved that there be stricken from the record and withdrawn from the consideration of the jury all of the evidence with respect to the claimed damages, on the ground that “no sufficient evidence of damage has been introduced from which the jury can determine the amount of the damage.” These motions were both overruled, the cause submitted to the jury, and a verdict was returned in favor of the plaintiff in the sum of $1,000. A motion for judgment notwithstanding the verdict and, in the alternative, for a new trial was made, the former being overruled, and the latter required that the plaintiff elect to accept a judgment for $262.90 less than the amount of the verdict or a new trial would be granted. This election was made and a judgment entered for the sum of $737.10, from which the defendant appeals.
On September 3,1920, there were shipped from Hill-yard, Washington, the two cars of mules above mentioned, consigned to Grand Island, Nebraska. One of these shipments originated at Madras, Oregon, and moved from there over the Oregon Trunk Railway to Spokane, where it was transferred to the appellant’s road. The other originated at Mansfield, Washington, at a station on the road of the appellant. The mules
It is first contended that there was no breach of duty in the failure to furnish feed at Great Falls. This contention is based upon the live stock contracts under which the shipments moved, which contained a provision that the shipper, at his own risk and expense, would load and unload the stock and would furnish an attendant to accompany it, and that ‘ ‘ said attendant or attendants shall care for, feed and water the stock while the same is in the possession of the carrier . . . . ” It is not necessary to determine the effect to be given to this provision. When the stock was
“And where the carrier undertakes to feed and water stock notwithstanding a contract imposing this duty on the shipper, it is bound to exercise due care to see that the stock are given suitable food and water.”
It is next contended that the respondent failed to prove any damages. Upon the trial, F. T. Young, who accompanied the shipment, as above stated, testified to the condition of the mules when they arrived at Grand Island. He was then asked this question: “What would have been the value of these mules per average head had they been in good condition and physical strength and health at Grand Island on the 13th day of September, 1920?” This question was objected to on the ground that it was “incompetent and irrelevant, and further that this witness has not shown his qualifications to testify in answer to the question.” The objection to this question was sustained on the ground
“In an action for loss or injury to goods shipped, it is competent to show that there was no market for the goods at the place of destination. And, where the goods lost or injured are without market value, or have no market value at the place of shipment, evidence is admissible to show their actual or intrinsic value.”
“Accurately stated, the rule of damages in actions against a carrier for injury to cattle carried by it and injured by negligence is the difference between the market value of the cattle in the condition in which they would have arrived but for the negligence of the defendant and their market value in the condition in which, by reason of such negligence, they did arrive. ’ ’
The next question is whether the appellant company is liable by reason of the excessive confinement of three or four hours before the mules were unloaded at Billings. The appellant’s line ended at Laurel, Montana, or more accurately stated, at Mossmain, which is close thereto. From Laurel to Billings is fifteen miles and the running time is approximately forty minutes. As to the three trans-continental lines which meet there, the Great Northern, Burlington and Northern Pacific, the latter does all the switching. From Laurel to Billings the cars containing the mules were handled by the Northern Pacific over its track. The shipping contracts under which the stock moved make no mention of the Northern Pacific. One of the cars originated at Madras, Oregon, on the Oregon Trunk Railway, and it is as to this car that it is claimed the appellant is not liable because it was an intermediate carrier. The appellant being an intermediate carrier as to the shipment that arose at Madras, Oregon, on the Oregon Trunk Railway would only be liable for its acts of negligence and those of its agent and would not be liable for the acts of negligence of any other carrier. Oregon-Washington R. & Nav. Co. v. McGinn, 258 U. S. 409.
The waybills under which the stock moved make no mention of the Northern Pacific, but call for the delivery of the cars to the Chicago, Burlington and Quincy
In addition to this, there were no adequate facilities at Laurel or Mossmain furnished by the appellant for the taking care of the mules had they there been unloaded, which would have been within the 36-hour limit under which they were shipped. The appellant was also at fault in its failure to notify the Northern Pacific agent at Laurel that the two cars of mules would arrive there and the time of their arrival. Had this been done, they would have been able to have left Laurel and reached Billings without any excessive confinement, as the train upon which they could have gone would have been held until their arrival.
It is next contended that the trial court erred in refusing to strike certain testimony. When the witness Young was testifying as to the condition of the mules when they arrived at Grand Island, on one.or two occasions he referred to them as being “skinned up.” There was no allegation in the complaint of any external injury, and whether the mules were thus damaged was not an issue in the case. This question was of minor importance and would not be sufficient to justify a reversal, but inasmuch as a new trial will take place, it was thought best to here suggest the ruling that should have been made.
The final question is whether the case should go
The judgment will be reversed, and the cause remanded with directions to the superior court to grant a new trial.
Parker, C. J., Holcomb, Mackintosh, and Hovey, JJ., concur.