Cripe & Harris v. Davis

BROWN, J. Under Section 5878, Or. L., the Railroad Commission, now designated by law the “Public Service Commission,” is required to prescribe a just and reasonable live stock contract, to be used by all railroads when shipments of live stock are offered between points wholly within the State of Oregon. The record before us discloses that on December 7, 1919, the Commission, pursuant to statute, prescribed the form of live stock contract pleaded and received in evidence in this case. The contract executed between the shipper and the railroad company, known as the “Low Value Live Stock Contract,” contained certain conditions precedent to the plaintiffs ’ right to recover damages for injury to their sheep. Under the terms of that contract, they were required to give notice in writing of their claim, to some lawful agent of the carrier, before the sheep were removed or mingled with other stock. And it is a further condition thereunder, that no action to recover damages for injury to the sheep by virtue of the shipping contract shall be sustained by any court, unless the same shall — 149 — have been commenced within sixty days after the shipper has received notice of the carrier’s refusal to pay. The contract also contains a clause whereby it .is agreed that the valuation of the sheep thereunder shall not exceed $3 per head. For a case illustrating the reason for the necessity of prompt presentation of such claim, see Smith Meat Co. v. Oregon R. & N. Co., 59 Or. 206 (117 Pac. 303). That the provisions of this contract were in full force and effect during the transportation and the unloading of the sheep at Sonny must be conceded. If the injury to plaintiffs’ property occurred while the provisions of the shipping contract were in force, the plaintiffs’ right to recover is governed by the provisions of that contract and such recovery is limited to a damage of not to exceed $3 per head. But the plaintiffs’ theory of the case is that the railroad performed its full duty as a carrier and delivered its shipment of sheep to them at Sonny, thereby terminating its liability under the terms of the contract. This claim is controverted by defendant and an issue between the plaintiffs and the defendant is thus made as to whether or not delivery was complete at the time the sheep were killed.' It is not disputed that the sheep were transported from Maupin to Sonny, Oregon, under the terms of the Low Value Live Stock Contract entered into in order that plaintiffs might secure the benefit of a lower charge for transportation. The shipping contract relied upon by the defendant provides, in part: “Maupin, Oregon Station, July 2, 1919. “This agreement, made the day and year above stated, between Oregon-Washington Railroad & Navi — 150 — gation Company, hereinafter called the ‘ Carrier, ’ and Cripe & Harris, hereinafter called the ‘Shipper,’ WlTNESSETH : “That the shipper, having loaded 1519 head of sheep in cars as designated in the margin hereof, consigned to Cripe & Harris, at Sonny, Oregon, the carrier hereby agrees to transport the same from Maupin to Sonny.” The following language is written in pencil across the contract: “Final destination Portland, for feed and grazing at Sonny.” The evidence proves that the freight was prepaid by the shipper from Maupin to Sonny. The sheep were unloaded at Sonny and received by the shipper at that point. Some sixty days later, after the sheep had been herded upon the range in the vicinity of Sonny, some two carloads of them were shipped on to Portland, and later the remainder were returned to the home range. It was the intention to transport these sheep from Maupin to Sonny and run them upon the mountain range during the summer, and, when fattened, to ship the mutton sheep on to Portland, which was done. Those that were not fit for the butcher’s block were returned to the home range, as was originally intended. When the sheep were shipped from Maupin, and on their arrival at Sonny, at the request of plaintiffs the freight-cars in which they had been transported were “spotted” upon the “mill spur” track on ground belonging to a mill company, from which the shipper had obtained range for the sheep. That spur-track is not on railroad property, and is separated by a fence from the railroad right of way. The evidence discloses that the sheep were unloaded, given over to the exclusive possession of the shipper, and the train crew — 151 — had departed from Sonny a full half hour before the injury to the sheep occurred. No member of the train crew or any representative of the railroad company had anything to do with the custody of the sheep at the time of the accident whereby the sheep involved in this controversy were killed. Nothing remained to be done by the carrier in completion of its contract safely to carry and deliver the sheep to the shipper at Sonny, the point of destination: Gregg v. Illinois Central R. R. Co., 147 Ill. 550 (35 N. E. 343, 37 Am. St. Rep. 238), and valuable note with the cases collected. The shipper, with the carrier’s consent, took possession of, and assumed full dominion over, the sheep at Sonny. The fact that after delivery the sheep were permitted to remain for a time in the vicinity of the railroad right of way, and that some of them strayed upon the track, imposed no liability upon the carrier under the shipping contract in the case at bar: Vaughn v. New York, N. H. & H. R. R. Co., 31 R. I. 235 (61 Atl. 695). The contract between the parties hereto is a carrier’s contract for transportation of the sheep, not a herder’s contract. Defendant says : “Assuming that there was a completed delivery to plaintiffs at Sonny, if the damage to the sheep was due to a cause which began to operate while the sheep were still in defendant’s possession, the contract provisions would still be applicable and bind both parties.” This is a correct statement of the law: 5 Am. & Eng. Ency. of Law (2 ed.), p. 446; 10 C. J., pp. 247, 248. However, the doctrine contended for above does not apply to the facts in the present case. There are a number of illustrative causes wherein that principle is applicable, one of which is Bilby v. Chicago — 152 — etc. Ry., 184 Mo. App. 644 (171 S. W. 39, 41). In that case, the railroad company was sued for loss of hog-s after delivery to the consignee. The action arose ont of the fact that the railroad company had failed to give the hogs proper attention while transporting them during hot weather, and had also failed to furnish proper watering facilities upon their arrival at their destination. The opinion says: “From Olathe on to Quitman, a distance of about 150 miles, the hogs were frequently drenched with water in the cars but were given no water to drink except what they could lick up from the floor. They arrived and were unloaded at Quitman about 1 o ’clock in the afternoon, undamaged, but hot and thirsty. Plaintiff and his assistants were there to receive them. The stock-pens were in a low, hot place, and the hogs immediately began to suffer from heat and thirst. Defendant had a well at the station, but the pump was out of order, and plaintiff, unable to procure water for the hogs, and fearing they would die if left in the pens during the afternoon, proceeded to drive them to one of his farms three miles away. After they had traveled a mile or more, the hogs, in the utmost distress, piled up in wayside ditches and thirteen died. The others, when they reached the farm, were much injured by their suffering's.” The case is likewise in point on the question of delivery. In that case the plaintiff took charge of the hogs immediately when they were unloaded from the cars into the pens. It was the contention of the railroad that delivery was made to him at that time and that for that reason no cause of action inured to him from the damage subsequently caused by the failure to provide watering facilities for the purpose of watering the hogs while in the pen. The court, on appeal, decided that delivery of the hogs to plaintiff was made when they were unloaded from the cars and placed in the custody and under the con — 153 — trol of plaintiff. Now, recurring to the care of the stock, the court held that hogs in transportation in. hot weather require care and attention to prevent them from injury, and that it was the duty of defendant to provide proper facilities and means for the reasonable prevention of injury from overheating and thirst; that in addition to throwing water on the hogs occasionally, it was the duty of the transportation company to give them water to drink to prevent injury from thirst. The evidence showed that the proximate cause of the injury was the negligent acts of the company in failing to water the hogs while being transported and in neglecting to provide facilities for watering them after they were unloaded. That case affords an illustration of loss occurring after delivery of stock to the owner, from a cause which began to operate while they were in the carrier’s possession. But in the case at bar, the sheep were run over and killed by a locomotive engine after they had been delivered into the possession of the owner by the carrier, and the cause of their destruction did not begin to operate while they were in the carrier’s possession. If the sheep had died from injuries received through the carrier’s negligence during the life of the contract, then it would be a case of loss from a cause which began to operate while the stock were in the care and possession of the carrier. The defendant asserts that reversible error was committed by the court because it submitted to the jury the question as to whether delivery of the sheep to the shipper was made at Sonny prior to the killing of the stock, and cites Schulte v. Pacific Paper Co., 67 Or. 334, 337 (135 Pac. 527, 136 Pac. 5); Oberlin v. Oregon154 Washington R. & N. Co., 71 Or. 177, 187 (142 Pac. 554); Hoag v. Wash.-Or. Corp., 75 Or. 588, 596 (144 Pac. 574, 147 Pac. 756). Delivery is a mixed question of law and fact: Vaughn v. Vaughn, 272 Ill. 11, 22 (111 N. E. 566); Weigand v. Rutschke, 253 Ill. 260, 263 (97 N. E. 641). Where the evidence is plain, clear and undisputed, showing that the personal property was received, transported and put into the possession and under the dominion of the consignee at the point of destination, it would be proper for the court to instruct the jury, as a matter of law, that delivery of the freight had been made by the carrier: Whitney Mfg. Co. v. Railroad Co., 38 S. C. 365 (17 S. E. 147, 37 Am. St. Rep. 767). In the case at bar, the court refused to instruct, as a matter of law, that delivery of the sheep had been or had not been made, but left this question to be determined by the jury. That ruling could not have injured the defendant. If any error was committed by the court in that respect, it was in favor of the defendant and against the plaintiffs, and they are not complaining. The defendant excepts to the court’s instruction relating to the ownership of the injured sheep. The instruction was brief, but it was plain and to the point. It reads: “It is incumbent upon the plaintiffs to show ownership of the sheep — ownership of the stock.” A jury would understand, from that instruction, in connection with the whole charge, that a burden is imposed upon plaintiffs to show ownership of the sheep in themselves, before they are entitled to recover damages. — 155 — The fact that in the case at issue plaintiffs’ sheep were upon the defendant’s right of way, and that they had hunched themselves upon the track in front of the approaching train, did not excuse the defendant from using reasonable care so as to avoid running down and killing the stock: Moses v. Southern Pac. R. R. Co., 18 Or. 385, 398 (23 Pac. 498, 8 L. R. A. 135); Keeney v. Oregon Ry. & Nav. Co., 19 Or. 291, 292 (24 Pac. 233); Richardson v. Portland Ry., L. & P. Co., 70 Or. 330, 336 (141 Pac. 749). We have considered the motions for nonsuit and directed verdict, and find that the court committed no error in denying them. We have examined all questions relied upon in defendant’s brief, but we are compelled to hold that reversible error is not found in the record. We cannot weigh the evidence in this cause. We can search the record for the purpose of ascertaining if each and every material allegation of the complaint is sustained by some competent evidence. When we have done that, our duty and power in relation to the evidence ends. The jury, the exclusive judges of the facts, having had some competent evidence upon which to base their finding, returned a verdict that binds the parties to this litigation. This case is affirmed. Affirmed. McBride, C. J., and Bean and McOotjrt, JJ., concur.