Blackwell v. Oregon Short Line Ry. Co.

Mr. Justice Bean delivered the opinion of the court. 1. It is candidly stated in defendants’ brief as follows: “The basic question, therefore, so far as the railroad company is concerned, was whether the plaintiff delivered and the defendant received the cattle at about 8 o’clock on the morning of the day in question and before the departure of the morning train, * * and if the cattle were delivered before the departure of that train it was the duty of the carrier to take them out then, that being the only scheduled train on the branch as provided by the published and filed schedule.” It will be seen that there was a sharp conflict in the evidence as to the preparedness for the shipment of the cattle in question at the time of the departure of the train. The testimony on the part of the plaintiff tended to show, and the jury found, that when the train arrived at Juntura the cattle were near by the stockyard of the defendant where the men were cutting out the feeders as it was a better place for such — 309 — work than in the yards; that they were in the yard when the train hacked up to load the Jones cattle; and that when the latter were loaded and out of the way, Blackwell had about 3 oars of his cattle ready to load, and, except for some misunderstanding caused probably on account of strained diplomatic relations between Blackwell and the defendant \s servants, would have commenced to load the cattle into the cars while other men weighed the remainder, so that there would have been but a few of the cattle left to load when the weighing was completed at about 9:30 o’clock, and the train would not have been delayed on account of loading the Blackwell cattle any appreciably longer time on that day than it was on the following day when they were loaded in 25 minutes. It appears that Juntura is a small station on this branch line, and that the railway company did not maintain a yard, nor provide any means for placing the cars for loading cattle until the regular daily train arrived, and did not expect the stock to be loaded in advance of its arrival. There were 7 carloads of plaintiff’s animals, and they could not all be loaded at once. The loading chute held but one car, and if they were loaded and transported at all, under the prevailing conditions, the daily train must be held to afford a sufficient length of time for so doing. The jury found according to the theory of the plaintiff, and this must be assumed to be the true one. It was not the theory of the defendant, as indicated by the evidence, that it would have disarranged the train schedule and prevented the regular connection for the railroad men to have devoted 35 or 40 minutes to the loading of plaintiff’s cattle on the 16th, but that it would be iy2 or 2 hours before Blackwell would be ready to commence loading. The jury did not find the condition as — 310 — claimed by the servants of defendant to exist. It conld fairly find from the evidence that when defendant’s train left Juntura plaintiff’s cattle were, for all practical purposes, ready to be loaded upon the cars; that plaintiff had made arrangements with defendant through its agent to have the cattle there at about 8 a. m. on that morning; and that he complied with the requirements of the railway company in this respect. The conditions on the branch line of the defendant railway are different from those upon which the opinion was based in Cohen v. Minneapolis, St. P. & S. S. M. Ry. Co., 162 Wis. 73 (155 N. W. 945), cited by defendants, where plaintiff requested a fast stock train to wait for livestock which was not loaded into the ears but which should have been loaded before the train arrived. 2. It is deduced from the general rules in 4 R. C. L., Section 409, page 951, that a common carrier is bound to accept and carry livestock that is tendered to it for shipment in good condition. As to the delivery for shipment we find in the notes to Norfolk & W. R. Co. v. Harman & Crockett, 91 Va. 601 (22 S. E. 490, 50 Am. St. Rep. 85, 44 L. R. A. 290, 292), the following rules: “The duty of a carrier of livestock to receive, transport, and deliver it is not fully discharged unless the carrier makes provision at the place of loading to properly receive and load the stock, and provision at the place of unloading to properly deliver the stock to the consignee: Covington Stockyards Co. v. Keith, 139 U. S. 128 (35 L. Ed. 73, 11 Sup. Ct. Rep. 469).” ” “And the refusal of a railroad company to ship cattle from a station after they had been delivered according to the terms of the contract of shipment at stockyards of the company at that station and placed in such stockyards relieves the shipper from the neces — 311 — sity of making any further delivery or offer to deliver: Louisville N. A. & C. R. Co. v. Godman, 104 Ind. 490 (4 N. E. 163).” In the present ease the general rule is subject to the conventional arrangements made between Blackwell and the agent of the railway company on the previous day, to the effect that plaintiff should have his cattle there at the stockyard at Juntura ready to load at about 8 a. m. on September 16, 1915, when the train came in and was ready to receive them: Lackland v. Chicago & A. R. Co., 101 Mo. App. 420 (74 S. W. 505). What actions of the shipper will constitute delivery to a carrier are necessarily governed by the surrounding circumstances of each case. Such conventional arrangements may be varied by usage or by a particular course of dealing between the parties. They may make such stipulations upon the matter of delivery as they see fit, and when made they are to govern: 4 R. C. L., p. 690, § 168. 3. The station agent and conductor of defendant were informed on the day before the intended shipment that the plaintiff’s cattle were to be put into the pens for shipment, and no further formal notice was necessary: 1 Hutchinson, Carriers (3 ed.), § 115; Mason v. Missouri Pac. Ry. Co., 25 Mo. App. 473; Nelson v. Chicago, B. & Q. R. Co., 78 Neb. 57 (110 N. W. 741). 4. A delivery of cattle to a carrier may be either actual or constructive, and when made in accordance with the recognized custom and practice prevailing in the dealings between shippers of livestock and the railway company it will bind the carrier and constitute an acceptance, and when the facts are in dispute the question of delivery is for the jury: 4 R. C. L., p. 692, § 170; 4 Elliott, Railroads, § 1413; Deming v. Merchants’ Cotton-Press & S. Co., 90 Tenn. 306 (17 S. W. — 312 — 89, 13 L. R. A. 518). But no formal acceptance is necessary where the agent has knowledge of the delivery of the goods with the intention that they be shipped and makes no objection thereto. It is not essential that there be any written receipt or bill of lading. 5. The liability of the carrier as common carrier begins with the actual delivery of the goods for transportation, and not merely with the formal execution of a receipt or bill of lading: 6 Cyc. 413. The trial court properly overruled defendant’s motion for a non-suit and request for a directed verdict in its favor. The court charged the jury practically in conformity with the law as above stated. Instruction No. 9, excepted to by defendant, is as follows: “If you find that plaintiff brought his cattle to the stockyards of the defendant railroad company for transportation on the train from Juntura to Hope in accordance with the directions of its agent, or in accordance with its recognized custom of receiving cattle for transportation, then this would constitute a sufficient delivery to compel the defendant to transport them within a reasonable time.” 6. It is contended on the part of the defendant that the court erred in receiving evidence concerning the market value of the cattle at Hope, Oregon, on September 17, 1915, in the condition in which they were delivered and of the shrinkage per head between the time they were delivered to the railroad company at Juntura and when they reached Hope on the following day. The measure of damages was based upon the loss in the weight and value of the cattle caused by the delay in the shipment from Juntura and delivery at Hope. Both places are in the same county about 40 miles apart, which is a stock-raising district, a place of purchasing and not a selling market for beef cattle, as the — 313 — term is usually understood. It appears that upon the trial of the cause the value, whether at Juntura or at Hope, was assumed by the attorneys and witnesses to be the same, except for the shrinkage caused by the unnecessary delay in shipping and delivery. The question as to the usual and ordinary loss of weight in the shipment for such a distance was all detailed and explained to the jury. It could not be ascertained exactly. The jury was in a position to and undoubtedly did determine the amount of deterioration in the value of the cattle which was the usual and natural consequence of a failure to carry and deliver them within a reasonable time, and which would be regarded as reasonably within the contemplation of the parties to the contract when the same was made: Levy v. Nevada-California-Oregon Ry. Co., 81 Or. 673 (160 Pac. 808); Howell v. St. Louis & Hannibal Ry. Co., 171 Mo. App. 92 (153 S. W. 578). 7. The court charged the jury to the effect that if they found for plaintiff, the measure of damages would be the depreciation in the value of the animals caused by the negligent delay in the shipment: 4 R. C. L., p. 998, § 466. We find no variance from the rule as to damages, either in the admission of evidence or instructions to the jury, which would change the result or constitute reversible error. 8. The agent, Delsole, was named as defendant in the action. No cause of action against him was stated in the complaint, and no attention seems to have been given him upon the trial. The lower court instructed the jury as though the railway company was the only defendant. Delsole’s name should be stricken from the judgment. Finding no prejudicial error in the record, the judgment against the defendant Oregon Short Line Railway Company is affirmed. Affirmed.