Gray v. Oregon Short Line Railroad

RICE, J. Appellants alleged that on July 3, 1915, they delivered to respondent 3,058 head of lambs for shipment to [703] Chicago, Ill.; that respondent did not promptly carry and deliver the property, but, on the contrary, negligently allowed the lambs to remain on Board the cars at Hailey, Idaho, where they were loaded, in the hot sun, without food or drink, for a period of seven hours and ten minutes, thereby causing them to shrink in value and in weight, to the damage of appellants. The court found that after appellants’ sheep were loaded, they were held at Hailey until completion of loading seventeen cars of sheep belonging to other shippers destined to Chicago over the line of the railroad of respondent and connecting carriers, and that when all sheep destined for Chicago were loaded, they were immediately forwarded and promptly transported to destination, and arrived at the first feeding point and at their final destination as soon and in as good condition as if each consignment had been separately transported and forwarded as soon as the loading thereof was completed. The court also found that there is a normal shrinkage of sheep during transportation, but that there was no evidence that those in question shrunk in transit between the point of origin and point of destination in any amount in excess of the normal shrinkage. No damage is claimed other than that resulting from shrinkage in weight. This action is founded on negligence. The general duty which rested upon respondent is stated in the case of St. Louis & S. F. R. Co. v. Zickafoose, 39 Okl. 302, 135 Pac. 406, as follows: “It was the duty of the carrier, after the livestock was received and loaded according to agreement, to transport them with all convenient dispatch with such suitable and sufficient means as it was required to provide in its business; that is to say, in a reasonable time. ’ ’ What is a reasonable time is a question of fact in each particular case, the determination of which may be affected by the regular train schedules established by the carrying railroad. (Bosley v. Baltimore & O. R. Co., 54 W. Va. 563, 46 S. E. 613, 66 L. R. A. 871; Hickey v. Chicago, B. & Q. R. Co., 174 Mo. App. 408, 160 S. W. 24; Tiller & Smith v. Chicago, [704] B. & Q. R. Co., 142 Iowa, 309, 120 N. W. 672; 10 C. J., p. 286, sec. 407.) It is not contended in this ease, however, that there was unusual delay in reaching the point of destination, but the delay of which complaint is made consisted in holding the stock on the ears at Hailey after loading, and before commencement of transportation. As to whether this delay was negligent, or otherwise, must depend upon the circumstances. The court found that the schedule of trains of respondent was such that if the sheep had been immediately moved from Haifey to the next junction point on the main line of respondent railroad they would not have moved forward from the junction point before the evening of that day. In other words, they would have been delayed at the junction point instead of at Hailey, the point of loading. Under the circumstances, it cannot be said as a matter of law that th'e. delay complained of was negligent. If there were doubt on the question of respondent’s negligence, there is no doubt of appellants’ failure to prove damages as the result of such negligence. The lambs were delivered for transportation to Chicago, but as a matter of fact they were diverted and delivered to the shipper at Omaha. The burden was upon the appellants to show that on account of being delayed on the cars at Hailey, the lambs weighed less upon their arrival at Omaha than they would have weighed had the delay not occurred. (Richmond etc. R. Co. v. Trousdale, 99 Ala. 389, 42 Am. St. 69, 13 So. 23; Smith v. New Haven & N. R. Co., 12 Allen (Mass.), 531, 90 Am. Dec. 166; Sisson v. Cleveland etc. R. Co., 14 Mich. 489, 90 Am. Dec. 252.) The court found that no evidence of abnormal shrinkage was furnished. From hn examination of the record, the1 court was justified in so holding. The judgment is affirmed. Costs awarded to respondent. Morgan, C. J., and Budge, J., concur.