Kain v. Kansas City, St. Joseph & Council Bluffs Railroad

Philips, P. J. I. It is objected that the petition is defective in that it fails to aver that defendant was- a railroad corporation, or that it was a common carrier. The defendant, however, is sued as a railroad corporation, and the answer admits that it is such. It is also1 alleged that the chickens were delivered to defendant by plaintiffs, at Kansas City, to be shipped to Denver, Colorado, and that ‘£ defendant, for a valuable consideration, received and agreed to transport them.” The allegation of a contract to carry, coupled with the averment and fact that defendant was a railroad corporation, was sufficient to fix the liability of defendant. 1 Rorer on Railroads, 654. The petition was certainly good after verdict, where the proofs showed that defendant was exercising the office of such carrier, and did, in fact, so contract and act in this instance. II. It is insisted that the damages in this case should have been limited to the chickens actually killed in Kansas City. The allegation of the petition, in effect, is, that the injury complained of was the result of the car, in which the chickens were loaded, being violently thrown against another car in Kansas City. What difference can it make whether the chickens were [62] killed outright by the collision, or died soon thereafter -on the road to Denver, say within thirty-six hours ? The gravamen of the complaint is, that the injury resulted from the imputed negligent act. So no matter where the chickens died, the question was, did the loss to plaintiffs result from the negligent act of defendant .alleged in the petition ? The instruction given on behalf of the plaintiffs required the jury to find that “said ■chickens were killed, destroyed, and lost on account of the carelessness and negligence of defendant in causing to be thrown the car containing the chickens with great force against another car.” This is all the law exacts. III. It is urged that plaintiffs were guilty of contributory negligence in failing to right up and repair their coops in the car at Kansas City, after they discovered the mishap, or in failing to demand of defendant such repairs before leaving the station. To this it is .sufficient to say, in the first place, that defendant tendered no such issue in its special defence. The answer specifically undertook to set out the imputed contributory negligence of plaintiffs, which caused the injury. This is not among them. The answer wholly ■denied the allegation as to the collision at Kansas City; and defendant’s evidence was directed to this issue to show that no such abrupt backing of the car in question occurred. It could not well have set up the fact of plaintiffs’ negligence in this particular without admitting that the disarrangement to the coops occurred in the Kansas City station. This defendant was unwilling to concede and avoided, either in its' answer or any instruction asked, presenting any such distinct issue at the trial. IY. The first instruction given for the plaintiffs is objected to because it employs the language, “ as charged in the petition.” It is quite apparent from the reading of the instruction that it is not obnoxious to the charge of referring the jury to the pleadings to ascertain what the issuable facts are. All the essential facts to be found by the jury are set out in the instruction, and the addi [63] tion of the words, “as alleged in the petition,” were mere surplusage. They could have done no possible harm to the defendant. It -was no more, in effect, than if the court had declared that the facts given in the instruction to be found by the jury, were alleged in the petition. Y. The instruction given by the court on the measure of damages is criticised, because it failed to direct the jury to allow for such loss or damage as is usually or necessarily incident to such transportation. There is no reasonable basis for such complaint. The instruction only authorized the jury to assess such damages as were occasioned “by the default, carelessness, or negligence of the defendant.’.’ It is true, as suggested by the learned counsel, that the court refused to submit to the jury for special finding what is the ordinary shrinkage or loss in transportation from Kansas City to Denver? The court accorded to defendant nineteen special facts to be found by the jury on so simple an issue as was presented by this record. There should be some reasonable limit to the multiplication of such submissions. But suppose the court had submitted it, what more could the jury have done under it than to return their opinion, based on any evidence submitted, as to the amount of the shrinkage or loss ? How could such finding have altered the result, when the jury found by their special verdict that the fault which occasioned the injury was attributable to the act of the defendant, and they were directed by the court to find such damage as resulted from the negligent act of defendant ? If defendant wished the attention of the jury to be especially directed to such ordinary loss it could have asked an instruction to that effect. The court did not limit the inquiry of the jury, in arriving at the measure of damages, to any particular set of facts. YI. The refusal of the court to give the third instruction asked by the defendant is assigned for error. The substance of this was embraced in the first declaration given by the court of its own motion. The only [64] difference, if any, is the employment in the instruction-given by the court, of the word, “reasonably,” before the words, “safeMondition,” This was a proper qualification. If the coops furnished by plaintiffs were reasonably safe and sufficient for the use to which they were put on this occasion, it was all the- law required. By their special verdict the jury found the fact to be, that “the coops were strong and sufficient for a long journey, when each coop was full of chickens, and when piled upon each other to the height of six feet.” On such a special finding there can be no practical result to such a criticism. VII. Complaint is made of. the refusal of tlie court to give the sixth instruction asked by defendant. This instruction announced the law to be, that if the injury to the chickens resulted from the improper manner of 'loading them in the car, the plaintiffs could not recover.This proposition was fully enough covered by the first instruction given by the court of its own motion, in addition to which the jury, by their special verdict, found that twenty-nine dozen of the. chickens shipped “died through defendant’s fault — carelessness in switching car in Kansas City.” So it may be said of the ninth instruction asked by the defendant. The jury made a spécial finding of every issuable fact predicated in it, and found the facts against defendant. How can it beheld to be reversible error that the court refused to tell the jury, if they found such fact or facts to exist, they should find for the defendant, when the jury by special verdict declared that no such fact or facts did exist ? VIII. Counsel for defendant have urged many other objections; but they are either unimportant, or-are covered by the principles of law already announced. It is claimed, for example, that the court erred in directing the jury to assess the damage, if any, done to the coops, at their value in Denver, when there was no evidehce of such value in Denver. This part of the instruction may be conceded to be technically wrong. But what possible harm could have come to the defendant [65] from this direction? The amount of this damage did not possibly exceed five or six dollars, and the evidence showed what the amount of injury to the coops was. As there is nothing to indicate that the jury placed any different amount of damage on the coops by reason of this direction, it would be trifling with the administration of justice to reverse this cause on such a naked technicality. It may finally be observed, that the special findings of facts made by the jury were such as to make the general verdict for plaintiffs unavoidable. The only remaining fact was as to the amount of the damages. There was sufficient evidence to support this verdict. The other judges concurring, the judgment of the circuit court is affirmed.