Chicago B. & Q. R. v. Tolman

Blume, Justice. This action was commenced in the district court of Big Horn County by Frank G. Tolman, the defendant in error, against the Chicago, Burlington & Quincy Railroad Company, plaintiff in error here, and against Walker D. Hines, Director General of Railroads. The ease seems to have been discontinued as to the latter defendant. The amended petition filed herein alleges that on the 15th day of September, 1917, plaintiff delivered to said Railroad Company, as a common carrier, 2859 head of sheep to be delivered over its road to Omaha, Nebraska; that said" sheep were loaded and it became the duty of said Railroad Company to promptly and safely transport and deliver said sheep, but that said [178] Company failed to perform its duty, and carelessly and negligently handled and transported said sheep and delivered at Omaha 247 sheep less than had been delivered to it at Greybull, Wyoming; that said 247 sheep are of the value of $2470, for which, with interest, judgment is demanded. An answer was filed by said Company, denying the allegations contained in plaintiff’s petition. The cause was tried before a jury on May 1, 1920, and a general verdict was returned in favor of the defendant in error. This verdict was subsequently set aside and the case was retried to a jury on February 28,1921. No- general verdict was returned at that trial, but special interrogatories were submitted to the jury and answered. In the answers to the first four interrogatories, the jury found the number of sheep that had been delivered to the defendant at Greybull, Wyoming, the number of sheep that arrived at their destination, and the value of the sheep that were found to be short. In answer to interrogatory No. 5,. the jury stated that the sheep that were¡ short were lost in transit by an unknown cause. Interrogatory No. 6 is as follows: ‘ ‘ If, in your previous interrogatories, you have answered that any of the plaintiff’s sheep were lost in transit, you may state whether such loss was due to the careless and negligent handling and care of said sheep by the defendant company ? ’ ’ The jury answered “No.” On October 10, 1921, the court entered an order striking the 6th interrogatory above mentioned, together with the answer thereto, from the record, and entered judgment for the plaintiff for $3114.43, together with the costs. A motion for a new trial was filed in said cause and overruled on October 26, 1921, and said Railroad Company brings proceedings in error here. 1. Counsel for said railroad company assign as error here the action of the court in striking! from the record interrogatory No. 6 above mentioned, and the answer thereto. No bill of exceptions is contained in the record and only [179] the journal entries, together with the original papers, have been brought to this court. "We are accordingly entirely unable to tell whether or not there' was any error in the above mentioned action of the court. The importance of the ruling lies in striking the answer. It may be that the evidence in the case conclusively shows that the answer given to the interrogatory is not sustained by any evidence or is contrary to all of the evidence in the case, and that hence .the action of the court was just and right. In the absence of a bill of exceptions we cannot determine that point, and cannot, therefore, consider the foregoing assignment of error. 2. The case is accordingly left with the record showing that the jury have answered the number of sheep delivered to the railroad company, the shortage at Omaha, the value of such shortage, and the fact that the sheep were lost in transit from a cause unknown. A special verdict must find all the facts essential to judgment and necessary to entitle the party having the burden of proof to recover, and cannot be aided by intendment or by extrinsic facts, and nothing must remain for the court to do but to draw conclusions of law or to make a mathematical calculation to ascertain the damages. 38 Cyc. 1919, 1920. The special verdict, not showing, as the record stands at the present time, that the railroad company was negligent, it becomes important to determine whether or not such negligence should appear. It is not contended, however, that plaintiff must prove negligence in all cases where live stock is lost during transit. The contention made herein is that it was the duty of the plaintiff in error to show negligence on the part of the railroad company for two reasons only, and we shall, accordingly; confine our discussion, and this opinion to the grounds argued in the briefs. It is claimed by counsel for the railroad company, in the first place, that it was the duty of the plaintiff in error to show that the railroad company was negligent in transporting the sheep in question' because a contract was entered into between plaintiff in error and said [180] railroad company, providing that the shipper should he in sole charge and care of the animals in transit and during the time that they were loaded and unloaded. The only place in which that provision of the contract, or any contract, appears, is in a motion for judgment filed in the district court on March 12, 1921, and attached to the original papers in the case. Aside from the fact that we could not take for granted the truth of the allegations contained in a motion without the proof thereof, it is well settled that the motion, in order to make it a part of the record in this case, should have been embodied in a hill of exceptions, and in the absence of the latter cannot, accordingly, be considered. Fitzpatrick v. Rogan, 28 Wyoming 231, 203 Pac. 245, where a. full review of the cases on that subject was made. Counsel for plaintiff in error further contend that it was incumbent upon the plaintiff to show negligence on the part of the railroad company because negligence was alleged, and having been alleged, must be proven. The allegations in the amended petition referred to are as follows: “That on the said date plaintiff loaded said sheep, 2850 head, into cars provided at Greybull by the defendant railroad company for shipment to Ornaba and delivery to said Clay, Robinson and Company as hereinbefore recited. That it was the duty of the defendant railroad .company to promptly and safely transport said 2850 head of sheep from Greybull, Wyoming, to Omaha, Nebraska, and deliver the same to said Clay Robinson Company at Omaha.. That said defendant railroad company did not perform its duty in the premises in that behalf, but to 'the contrary thereof carelessly and negligently handled and transported said sheep and by its carelessness and negligence lost Two Hundred Forty-seven head of sheep, while the same were in transit and only delivered at Omaha Twenty-six hundred and Three head of sheep, being Two Hundred Forty-seven sheep less than plaintiff delivered and said Railroad Company received at Greybull. ’ ’ [181] Counsel for plaintiff in error cite in support of their contention Bockersman v. Railway Co., 169 Mo. App. 168, 152 S. W. 389 and Robinson v. Buch, 199 Mo. App. 184, 200 S. W. 757. The rule appears to be in Missouri as contended. But it is technical at best, and is contrary to the accepted law in other jurisdictions. The rule is- stated in 10 C. J. 310 as follows: “In the absence of contractual limitations of the-carrier’s common-law liability it is not necessary, in an action for loss or injury to a shipment, to' allege negligence. However, it is not unusual to insert in a declaration averments which' affect only the rule of care and negligence which should govern the case; thus, declarations alleging defendants to be common carriers, and at the same time averring negligence on their part, in the transportation of the goods, are usual and well approved, both,.in actions of tort and in actions of contract; and in such cases failure to prove the allegations of negligence is no variance, and plaintiff may recover without such proof, provided the evidence shows a case under the general rule respecting the liability of carriers. ’ ’ The rule thus stated is well supported by authority, and meets with our approval. Railway Co. v. Veatch, 162 Ky. 136; 172 S. W. 89; L. H. & St. L. v. S. S. H. & C. Co., 157 Ky. 772; 164 S. W. 90; Metfield School District v. Boston, etc., R. Co., 102 Mass. 552, 3 Am. Rep. 502; Sargent v. Birchard, 43 Vt. 570; Williams v. Baltimore etc. R. Co., 9 W. Va. 33; Richards v. London etc. R. Co., 7 C. B. 839, 62 E. C. L. 839, 137 Eng. Reprint 332. It follows from what we have said that the judgment of the district court should be affirmed, and it is so ordered. Potter, Ch. J., and Kimball, J., concur. NOTE — See 4 C. J. pp. 165, 180, 785 (1925 anno); 10 C. J. 360;. 38 Cyc. 1919, 1920.