Bloecher & Schaaf, Inc. v. Pennsylvania Railroad

⁴⁶⁶ Pattison, J., delivered the opinion of the Oonrt. The appeal in this ease is from a judgment for the appellee, the defendant below, the Pennsylvania Railroad Company, recovered in a suit brought against it by the appellant, Bloecher & Schaaf, Inc. The first count of the declaration alleges that the plaintiff, on or about the 2nd of June, 1930, delivered to the defendant, a common carrier of live stock, at the Rational Stockyards, Illinois (in East St. Louis), 166 hogs “in good condition,” to be transported to the consignee, the plaintiff, at Baltimore, Md., “within reasonable time from the time said shipment was delivered to the said defendant, as they were in duty bound to do, and that when said ear arrived at the destination * * * there was one hog missing, twenty-four hogs were dead, and three hogs were in such bad condition they were condemned by the Health Department of the Oity of Baltimore, and the remainder of said hogs were in a greatly damaged condition.” The second count of the declaration alleges that: “The defendant delayed the transportation of said 166 hogs and by reason of the defendant’s negligence and unreasonable delay the said 166 hogs were not delivered on the day when they should have been, and were greatly depreciated in weight and appearance by the length of the delay, and the said shipment of hogs was otherwise greatly damaged in iransitu, all of which was due to no fault on the part of the plaintiff.” In the trial of the case four exceptions were taken to the rulings of the court upon the evidence, and one upon the prayers. The plaintiff offered five prayers, all of which were refused. The defendant offered four prayers; of these the third was granted as offered and the fourth granted as amended.

In addition thereto, the court granted what is designated as “court’s original instruction.” The plaintiff excepted to the rejection of its prayers and to the granting of the defendant’s third and fourth prayers; also, to the “court’s original instruction.” The facts of the case are substantially these: The appellant ⁴⁶⁷ delivered to tlie defendant to be transported over its road, starting from the stockyards in East St. Louis, 166 hogs of the average weight of 142 pounds, making a total weight of 23,600 pounds. The cost of these hogs to the plaintiff was $10.35 per hundred weight, or a total of $2,452.60. They were shipped in what is known as a double-decked car, and were loaded under tbe supervision of the shipping clerk of the stockyards, who testified that at the time of their shipment the hogs were “in apparent normal condition.” These hogs were purchased for the appellant by one Murray Watkins, a buyer at the stockyards in East St. Louis. He testified that he sorted the hogs and weighed them before shipment, and ordered them sent to the shipping department some time between 12.30 and 2 o’clock p. m. of June 2nd, 1930; and “that they were loaded about two-thirty to three o’clock,” and that they were “pnlled away from the loading chute at three-thirty p. m.” on that date; that the hogs were in good condition and “were one hundred and forty-two (142) pounds average and good quality.” In the deposition of Albert P. Boneau, lay inspector for the United States government in the Bureau of Animal Industry, Eational Stockyards, 111., whose duty it was to inspect all bogs for outbound shipment, including the hogs in question, he testified that “he was able to report that they were in apparently good health”; that his inspection was made “by observation and by standing and looking at tbe hogs as they are loaded.” The contract of shipment in this case contained the following provisions: “Sec. 1.

(a) Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of all or any of the live stock herein described shall be liable for any loss thereof or damage thereto or delay caused by * * *, the inherent vice, weakness or natural propensity of the animal. * * * “(b) Unless caused by the negligence of the carrier or its employees, no carrier shall be liable for or on account of any injury or death sustained by said live ⁴⁶⁸ stock occasioned by any of the following causes; overloading, crowding one upon another, * * * beat or cold, changes in weather or delay caused by stress of weather, * * * or other causes beyond the carrier’s control.” The freight bill for the shipment of these hogs, which was admitted in evidence without objection, does not show at what time the car containing the hogs left the Rational Stockyards. However, it does indicate the following: That the hogs were fed, watered, and loaded at 3 o’clock on the 2nd of June, 1930; at 11.15 p. m. on June 3rd, upon the arrival of the car at Pittsburgh, the hogs were unloaded, yarded, and put in the pen for feed and water and rest for over two hours and a half; at 5.05 a. m. on June the 4th, they were reloaded and taken to Marysville, Pa., where they were again unloaded at 2.45 a. m., June 5th, and given rest, water, and feed; they were reloaded at 8 a. m. of the same day; and arrived at Gwynn’s Run, Md., at 6.15 a. m., June 6th. The freight agent of the defendant in Baltimore, Gwynn’s Run Station, and Union Stockyards, testified that “the usual run of the train from St. Louis to Baltimore was three days; that they usually arrive here the third morning, which is a tentative run”; that “this particular train leaves the stock yards at East St. Louis at around 3 p. m. and is known as the Greyhound, and that it is regular live stock train and that the schedule is in printed form to reach here the third morning.” The hour of the car’s arrival was usually from 6 to 8 o’clock; and the hogs in this case would ordinarily have arrived between those hours on June 5th. Generally there was no unloading of the hogs in Marysville, but at Pittsburgh only, and the unloading at Marysville in this case consumed additional time.

Upon arrival of the hogs in Baltimore, one hog was missing, twenty-four found dead, and three were condemned by the health department. The missing hog is accounted for by the fact that one died in the unloading of the hogs at ⁴⁶⁹ Pittsburgh, it being said that its death was the result of suffocation. 2\ro post mortem, was made and no explanation was given for the cause of the death of the twenty-four hogs, nor was any reason given why three were condemned. The total weight of the dead and condemned hogs was 2,920 pounds, for which the plaintiff was paid by the Union Rendering Company, Inc., to whom the hogs were sold, one cent a pound, or $29.20. They were likewise paid the sum of $1.40 by check of the Pennsylvania Railroad Company for the hog that died at Pittsburgh.

It is further disclosed by the record that the average shrinkage of a hog when shipped from East St. Louis to Baltimore, arriving there on the third day, is from nine to eleven pounds per hog; that, in this case, the shrinkage was something over eighteen pounds to the hog. The prevailing price in Baltimore of hogs of this character in June, 1930, was $11.40 per hundred pound. As we have already said, the hogs were loaded at East St. Louis at 3 p. m. on June 2nd; they arrived in Pittsburgh at 11.15 p. ni. on June 3rd, thirty-two hours and fifteen minutes thereafter. After being watered, fed, and rested at Pittsburgh, they were reloaded at 5.05 a. in. on June 4th, five hours and fifty minutes after their arrival.

They arrived at Marysville, seven miles west of Harrisburg, at 2.45 a. m. on June 5th, after a trip of twenty-two hours and forty minutes. The hogs wnre reloaded at Marysville five hours and fifteen minutes after their arrival, at 8 o’clock a. m. xVt this place, as testified to by Eocher, defendant’s employee, the hogs, when reloaded, were in “good condition.” Hardesty, a conductor on the train from Enola, a station six miles from Marysville across the river from Harrisburg, to Baltimore, testified that the car in which the hogs were loaded, and which was a part of his train, left Enola yards at 8.05 p. m., June 5th, or more than twelve hours after the departure from Marysville, only six miles away. The court’s original instruction was as follows: “If the jury find from the evidence that the plaintiff’s agents delivered and the defendant accepted a car load of ⁴⁷⁰ logs for transportation from East St. Louis to Baltimore, that under the contract of carriage exhibited in evidence it was the duty of the defendant railroad company to exercise ordinary or reasonable care and diligence under all the circumstances of the case, to do the following things: “(a) To protect the said hogs when in transit from injury; and “(b) To deliver the said hogs with reasonable promptness at Baltimore. “The jury is further instructed that the defendant railroad company is not an insurer of the property of the plaintiff, and is not responsible for the death of or damage to said hogs due to the weather conditions or other conditions beyond its control, if the jury so find. “Therefore the verdict must be for the defendant, unless the jury shall find from a preponderance of the evidence: “(c) That the defendant railroad company in and about the transportation of said car load of hogs failed to exercise ordinary or reasonable care and diligence in the treatment of said hogs on route, or “(d) Failed to use ordinary care and diligence to transporting said hogs without unnecessary delay, and “(e) That as the natural and proximate result of said negligence upon the part of the defendant (if the jury find the defendant was negligent as aforesaid) some of said hogs died, and/or some of them were made sick, and/or some of them made an abnormal loss in weight, then the verdict must be for the plaintiff.” This instruction is regarded by both the appellant and the appellee as placing upon the plaintiff the burden of proving the negligence of the defendant. The appellant contends that the instruction is bad because of such fact, while its correctness is sought to be upheld by the appellee on the ground: (1) That there is evidence in the record tending to show that the death of the hogs and the defective condition of those condemned was the result of disease, and as a result thereof the burden shifted; and (2) that by a proper construction or interpretation of section 1 (b) of the bill of ⁴⁷¹ lading, hereinbefore set out in full, the burden of establishing the negligence of the defendant was upon the plaintiff.

It is said in 4 R. C. L., p. 993, secs. 460 and 461: “In an action against a carrier by a shipper to recover damages for loss or injury to live stock the burden of showing that the stock was injured while in the possession of the carrier is with the shipper. But when a loss or injury happens to live stock in the possession of a carrier for transportation the burden of proof rests on the carrier to exempt himself from liability; for tin? law imposes on him the obligation of safety. The owner or shipper is bound to prove no more than that the stock were delivered to the carrier, and the failure to deliver them safely. These facts are prima, facie evidence of negligence or misconduct.

Where the injury is physical a shipper will satisfy the rule requiring him to show an injury to his stock before the burden is cast on the carrier to exonerate itself, by establishing that the stock were delivered in good health and condition and redelivered by the carrier in an injured condition, but where the injury claimed is sickness a shipper does not satisfy the rule unless he goes further and shows that the illness was contracted as a result of the negligence of the carrier.” See Balto. & O. R. Co. v. Dever, 112 Md. 296 , 75 A. 352 . “While the burden of proof rests on a shipper of live stock to show that the stock urere in good condition when received for transportation by the carrier, yet it is settled by weight of authority, that where the shipper was not required to accompany the stock during transit either in person or by agent, and the shipper has shown loss of or injury to his stock while in the custody of the carrier, the burden of proof is on the carrier to show that such loss or injury did not result from any negligence on its part, or that the cause of the loss or injury was within one of the excusatory exceptions recognized by law.” 4 R. C. L., sec. 461. See Atlantic Coast Line R. Co. v. Rice, 169 Ala. 265 , 52 So. 918 . The defendant, in support of its contention, cites the case of Illinois Central R. Co. v. Word, 149 Ky. 229 , 147 S. W. 949, 950 , in which the court said: ⁴⁷² (1) “Where the live stock is accompanied by the owner or his agent or representative, and injury results while