Baltimore & Ohio Railroad v. Whitehill

Pearce, J., delivered the opinion of the Court. The appellee, John Whitehill, sued the appellant, the Baltimore and Ohio Railroad, a common carrier,to recover damages alleged to have been sustained by the plaintiff by reason of the defendant’s delay in the transportation and delivery of certain cattle of the plaintiff shipped over defendant’s road to the Union Stock Yards in Baltimore; to be sold at the cattle market held there. The declaration contained five counts, of which the first alleged that on December 7th, 1903, about 10 o’clock A. M. plaintiff delivered to defendant twenty-six head of cattle at Barnesville, in Montgomery county, to be by it carried for hire, with reasonable dispatch, from Barnesville to the Union Stock Yards in Baltimore City, and there to be delivered to the plaintiff; that a reasonable time for carrying said cattle from Barnesville to the Union Stock Yards was about five hours, but that the defendant negligently and carelessly detained said cattle on its road for an unreasonable length of time, to-wit, from the hour of delivery before stated, to the hour of ten o’clock A. M. on the following day, when they were delivered to the plaintiff. These eattle were shipped in car No. 11751.

The second count alleged, in precisely similar language, the delivery at Barnesville by the plaintiff to the defendant, on December 7th, 1903, at 10 o’clock A. M. of twenty-four other cattle to be carried to said Union Stock Yards, and their negligent detention upon defendant’s road until noon on the following day, when they were delivered to the plaintiff. These cattle were shipped in car No. 11822. The third count related to the same cattle mentioned in the second count. It alleges that these cattle were tendered for transportation, for hire, from Barnesville to the Union Stock Yards at 10 o’clock A. M. on December 7th, 1903, that be ³⁰² ing a reasonable hour for that purpose, after giving notice to defendant’s agent on December 4th, 1903, that said cattle would be so tendered, in order that defendant should have reasonable time to provide the means of transportation, but that defendant negligently failed and refused to receive and carry said cattle, from 10 o’clock A. M. on December yth, 1903, until 11 o’clock P. M. on the same day, and did not deliver them to the plaintiff at the Union Stock Yards until noon on December 8th, 1903.

The fourth count is the same as the first, except that it relates to a shipment of twenty-JJ&ur other cattle from Boyds Station in Montgomery County to said Union Stock Yards, these cattle being shipped in car No. 11960. The fifth count also is the same as the first except that it relates to a shipment of still other twenty-four cattle from ■Germantown Station in Montgomery County to said Union Stock Yards at 10 o’clock A. M., December 14th, 1903, these cattle being shipped in car No. 9189, and not being delivered to plaintiff until noon of the day following. The declaration then concludes as follows: “Whereby, on each of said several occasions by reason of the premises, said cattle failed to reach the said Union Stock Yards in time for the market on the respective days of delivery; a large shrinkage took place in the weight of said cattle, a deterioration in their condition and value; the plaintiff lost the profit he would otherwise have made by a sale of said cattle at the markets held at the Union Stock Yards on each of said respective days of delivery of said cattle, and the benefit of the expense incurred by him in traveling thereto, and preparing for a sale of said cattle thereat, and also lost the advantage of the expense of feeding and caring for said cattle, and other losses were then and there occasioned to the plaintiff in consequence thereof. “And the plaintiff claims therefore $ 1,000 damages.” The fifth count was stricken out during the course of the trial, it appearing in the evidence that the cattle mentioned therein had been shipped under what is known as “The Uni ³⁰³ form Stock Contract,” under which a lower rate of freight is charged, in consideration of which the carrier is exonerated from damages for negligent delay, beyond the actual expense incurred in feeding and watering the cattle during the detention; and it also appearing that plaintiff had sold these cattle, to arrive at the Stock Yards. The defendant demurred to each and every count of the declaration, and its demurrer being overruled, it filed the general issue plea, upon which the case went to trial, resulting in a verdict.and judgment for plaintiff for $375, from which this appeal was taken.

During the course of the trial, nineteen exceptions were taken by defendant to the admission of testimony. The plaintiff offered nine prayers, and the defendant offered thirty-eight. The plaintiff’s fourth, fifth and ninth prayers were modified by the Court and granted as modified, and all his other prayers were rejected. The defendant’s thirty-first and thirty-third prayers were modified by the Court, and granted as modified, and its thirty-fifth prayer was modified by the Court, and, as modified, was granted in connection with plaintiff’s fourth and fifth granted prayers, and all the other prayers of defendant were rejected.

The defendant’s 20th exception was taken to the rulings on the prayers, but the exception to the rejection of defendant’s 2nd, 3rd, 4th, 7th, 9th, nth, 14th, 16th, 17th, 18th, 19th, 20th, 21st, 24th, 32nd, 34th and 36th prayers were afterwards abandoned and these are not embraced in the record. The first question presented is raised by the demurrer to the declaration. The first, second and fourth counts allege that it was the duty of the defendant to transport and deliver the cattle received by it, within a reasonable time, thereafter, and they charge a negligent breach of this duty. These counts are founded upon the common law duty and liability of the defendant as a common carrier of live stock, and not upon any special contract between the parties.

What this duty and liability is, has been declared in this State in P., W. & B. R. ³⁰⁴ Co. v. Lehman, 56 Md, 209, in which the Court said: “In the absence of an express contract, the common law duty and liability of a common carrier, for the safe carriage and due delivery of live animals, are the same as that for the carriage and delivery of other property, the liability in all cases being qualified by the nature and inherent tendencies of the thing carried. In undertaking the carriage of live stock, therefore, the carrier assumes the obligation to deliver safely, and within a reasonable time, having due respect to the circumstances of the case.” In view of this language it cannot, therefore, be questioned that these counts, in respect to the allegation of duty and breach, each state a good cause of action. The third count alleges that it was the duty of the defendant to receive for transportation the cattle mentioned therein, and tendered it for that purpose, upon reasonable notice of the time and place where such tender would be made, and it charges a negligent failure and refusal to provide means of transportation and to receive said cattle, after such reasonable notice has been given, towit, three days previously. In 6th Cyc., 372, it is said: “A railroad company' engaged in the business of transporting freight as' a common carrier, is bound to furnish suitable cars as required by customers, upon reasonable notice (and in the order of application made) whenever it can do so without jeopardizing its other business.” The cases sustaining this statement of the law are numerous, and the principle is recognized in Lehman’s case, supra, in which the Court, speaking of the duty to receive and forward cattle from a connecting railroad, said: “If the defendant provided reasonable equipment to meet the requirement of the Sunday’s transportation, in the usual course, upon the notice received, and the plaintiff’s cattle were carried forward and delivered with due diligence, and as much expedition as was practical under the circumstances of the case, the defendant is not liable for the consequences of the unavoidable delay.

But, on the other hand, if the delay could have been avoided, by the use of due diligence, and the making of proper effort to send forward the cattle with ready and convenient dispatch, and injury. ³⁰⁵ resulted from a failure in that respect, the defendant is liable therefor.” It has been stated that the fifth count was stricken out, and it was further contended by the appellant, that the clause in the declaration which has been herein transcribed in full, and in which is set out the several items of loss sustained, and the amount of damages claimed, was a part of the fifth count stricken out, and that this invalidated the whole declaration. In 13th Cyc., 195, the law is thus stated: “It is unnecessary to insert a claim for damages at the end of each count or paragraph of the complaint. It is sufficient to state the amount demanded at the conclusion thereof.” In this case, not only was this sensible rule complied with, but it is clear that the clause in question cannot, either logically or grammatically, be regarded as constituting a part of the count stricken out, for it expressly says, “Whereby, on each of said several occasions* by reason of the premises, said cattle failed to reach the Union Stock Yards in time for the market on the respective days of delivery,” thus distinctly connecting the loss sustained and the damages claimed, with the negligence alleged in each of the counts in the declaration. It follows therefore that the demurrer was properly overruled.' The numerous exceptions to the admission of testimony were little discussed by the appellant either in the brief or in the oral argument, both of which were mainly directed to the ruling upon the prayers.

Many of these exceptions however, in fact, involve the same principles applicable to the prayers, and for their consideration it will be necessary to set forth briefly the substance of the testimony which was admitted. The plaintiff testified that he had been shipping cattle for sale for thirty-five years, and for the last eight years over the B. & O. Railroad from Boyds and Barnesville to the Union Stock Yards at Claremont near Baltimore; that these two stations are respectively about 65 and 70 miles from the Union Stock Yards which are the only stock yards in Baltimore, and that Germantown is about six miles nearer than Boyds. That there is only one market day in each week at these yards, as. ³⁰⁶ fixed by the president of the yards, and in December, 1903, Tuesday, was the market day; that the rule of shippers of stock from those stations, and his own invariable custom, was to order his cars to be ready for loading the morning of the day before, the market day and to load on the day before the market day; that Mr. Wilson, the live stock agent for the B. & O. R. Co., told him to load his stock for the market at the Union Stock Yards for the way freight train; that this way freight usually came to Barnesville about 11 o’clock, A. M., sometimes, 12 or x o’clock; that the time required for transporting cattle by that train varied at times, but the ordinary time was about six hours without any trouble unless there was so.me delay or something in the way, and that he had made the trip on that train in six hours; that he ordered two cars from the agent at Barnesville, Mr. Darby, on December 4th, 1903, in time to load on Monday the 7th for the way-freight,-and they were sent, but on Monday one of these cars was gone, and. Mr. Darby told him that D. O. had telegraphed him to let Mr. Titus have one of these cars and another would be sent him in time; that he loaded the remaining car that morning and left for Hagerstown at 5.12 that afternoon when the other car had not arrived; that on reaching Baltimore he went.to see Mr. Galloway, the freight agent or superintendent, who told him he forgot all about the other car; that one car from Barnesville and one from Boyds arrived at the stock yards between 9 and 10 A. M., December 8 th; that the other car from Barnesville did not arrive at the stock yards until after noon on December 8th; that the market always was held early in the morning, and the weighing commenced that morning about 6 o’clock, and the market was over about 8 o’clock and never lasted longer than 10 or 11 o’clock; that he tried to get the buyers to come down from the hill where they self to the butchers, to the pens where his cattle were, to buy them, but that he could only induce one man, Mr. Fox, to look at them, and that he sold them to him at private sale for 4% cents, though such cattle sold readily at the market that day for 4^ and 4^c, but that 4% was the ³⁰⁷ best price he could get, as the buyers were gone when his cattle were delivered, and there was no market for them.

He said that when he shipped stock from Germantown he had always signed a contract similar to the uniform live stock contract shown him, but never read one, and never signed any contract for shipments from Boyds or Barnesville; and that in ordering cars and shipping stock he always told the agent where the stock was to go for sale. W. B. White testified that he had loaded stock at Barnes-ville for plaintiff for four or five years, and that they always loaded for the market at the Union Stock Yards, the day before the market day, and that on December 7th, they were one car short on their order, as one of theirs had been diverted for Mr. Titus; that he kept on trying until he got the car replaced, and it was loaded down between 12 and one o’clock at night December 7th. Lambert, conductor of the Metropolitan Branch of the B. & O. R. Co., testified for defendant, that on December 7th, he took the two cars, Nos. 11751 and 11960 from Barnesville to Washington, 30 miles reaching there at 10.50 P. M. That his run is from Washington to the junction and return; leaving Washington at 5.30 A. M. and due on return at 3.10 P. M.; that if the work is light they can make the schedule, but cannot if it is heavy, and it was then very heavy; that this is not unusual and it is always heavy at that season; that the schedule is fixed for the usual time it takes to make the trip, and that on that day he kept the train moving whenever he had a chance to get out of the way of the passenger trains. Ross, conductor of way freight from Washington to Claremont, testified that on December 8th he moved these two cars from Washington to Claremont, leaving at 1.33 A. M and reaching Claremont between 6 and 7 A. M., a distance of 38 miles, but did not place them at the pens for delivery of stock; that there is no schedule for way freight trains on that branch.

It moves whenever it can, and never stands still unless it is impossible to move. Loch, another conductor, on the Metropolitan Branch, testi ³⁰⁸ fied that he took car No. 11882 from Barnesville at 12.18, December 8th, and delivered it at Washington at 8.20 A. M., that the rnn of 30 miles that night took about eight hours, being delayed in doing extra work by defendant’s orders. Hudson, another conductor, testified that he moved car No. 11882 from Washington to Claremont, leaving Washington at 8.20 A. M. and delivering the car at Claremont at ' 12.50 P. M. Could not leave earlier on account of first-class •passenger trains, and moved as quickly as possible. ■ Santman, station agent at Germantown, said the schedule of the way freight at that point was 1.15 P. M., but in December, 1903, it was usually from one to three hours late and always is at that season on account of Christmas goods. He also said plaintiff always signed uniform live stock contract at that station, but he could not say he understood it.

Higgins, station agent at Boyds, said plaintiff loaded cattle on a car there on December 7th about' 1 P. M. and the way freight moved it at 5 P. M. same day. He thought plaintiff when shipping there, signed uniform contract, but could not say, as he had no records. Jameson, acting agent at Barnesville in 1903, said plaintiff usually shipped one car a week there from May to December, and usually signed a contract similar to the uniform contract shown him; and the rate charged him was nine cents. Plaintiff did not say anything in regard to shipping for market, but the cattle were usually shipped to Claremont which is the station, and witness knew cattle were sold there.

C. W. Galloway, an employee of defendant for 23 years, and superintendent of Baltimore Division said there was no schedule for the way freight on that division. That local freights áre supposed to get out of the way of all other trains, whether they make their runs in two or twenty-two hours, and that he considered twelve hours good time for local shipment of stock from Barnesville to Claremont. Charles W. Pledge, agent at Claremont, said that station was commonly called Union Stock Yards; - that on December 8th, 1903, two cars were brought in for plaintiff and were ³⁰⁹ placed at the pens at 9.30 A. M., and that they were not placed sooner on account of the congested condition of the yard. Later on, he said these cars were placed at 10.30, and that the third car of plaintiff came in