Weisinger v. Southern Ry.

— 594 — Opinion of the Court by Wm. Rogers Cla.y, Commissioner — Affirming. Appellants, Harry Weisinger and son, are engaged in the business of farming and stock-raising, and live about two miles from Shelbyville Ky. On August 7, 1907, they contracted with appellee to furnish them, a car suitable for shipping fine hogs from Shelbyville to Lexington, Ky., where they were to be exhibited at the Blue Grass Fair. Appellants had six hogs, which they desired to ship, and arrangements were made by which these hogs were to be placed in the-same car in which one Frank Smith proposed to ship his hogs; appellants to have the use of one half of the car, and Smith the use of the other half. On August 10, 1907, about 8:30 p. m., appellant’s six hogs were brought to appellee’s depot in Shelbyville for the purpose of being loaded for shipment to Lexington. Smith, who was to use the other half of the-car, reached the depot, shortly before the employes of appellants. The latter, upon arriving at the depot, went immediately to appellant’s agent for the purpose of obtaining directions as to which ear the hogs should be loaded in. According to the testimony for appellants, appellee’s agent designated as the car in which the former’s hogs were to be shipped the car that was by Henry Moxley’s car, and in which Smith had already loaded his hogs. The testimony of appellee is to the effect that its agent' stated to appellants’ employes that their car was next to Moxley’s ear, that he had shown it to Smith’s son, and that they would probably find him at that car. Appellant’s employes then went to the car in which Smith had been loading his hogs, and proceeded to load their — 595 — hogs in the same ear. Shortly thereafter appellee’s agent came to the car and notified appellant’s employes that they had loaded their hogs in the wrong car; that it would be necessary for them to unload the hogs and place them in the car which had been ordered for that purpose. Appellant’s employes stated that it would be dangerous to remove the hogs at that time and that they would only do so at the risk of the company. Appellee’s agent says that he gave them the privilege of letting the hogs remain in the car in which they had been placed. This is denied by appellants’ employes, who assert that they were required to remove them at the time. Among the six hogs which appellants’ employes brought to the station for shipment was one fine, large boar weighing 600 or 700 pounds, and it is claimed the. agent was notified that the removal of this boar would in all probability result in his death. The hogs were then unloaded and moved into another car. Soon thereafter the boar died. Appellants instituted this action for the value of the hog, which the petition alleges was $1,500, claiming that its death was due to the negligence and carelessness of appellee, its servants, agents and employes. Appellee denied any negligence on its part, and also pleaded contributory negligence on the part of appellants. The jury returned a verdict in favor of appellee. From the judgment based upon that verdict the appellants appeal. Appellants ask a reversal upon three grounds: First, the verdict was contrary to the evidence; second, errors in instructions ; third, the admission of incompetent testimony. First. In view of the fact that the court has determined to reverse the judgment on other grounds, it will be unnecessary to set forth the evidence at — 596 — length for the purpose of determining whether or not. there is any merit in appellant’s first contention. Second. Appellants asked an instruction to the effect that it was the duty of the defendant to desúnate the car in which the stock was to be shipped, and if, by reason of the negligence of the defendant, the stock was loaded in the wrong car and had to be unloaded, and that such unloading and reloading caused the death of the hog, the jury should find for the plaintiffs the reasonable, vendible value of the hog. This instruction was refused. The court thereupon instructed the jury that it was the duty of the-defendant and its agents to exercise ordinary and reasonable care under all the facts and circumstances of the case to properly indicate to the plaintiffs, or their agents, the car in which the hogs were to be loaded for transportation to Lexington; that it was also the duty of plaintiffs, or their agents, on the' same occasion, to exercise ordinary and reasonable care under all the facts and circumstances of the case to ascertain, before proceeding to load thfeir hogs, the proper car in which the same should be loaded for transportation to Lexington, and to exercise ordinary and reasonable care to avoid loading their hogs in the wrong car; that if the jury should believe from the evidence that the defendant negligently failed to discharge the duties required of it in the instructions, and if by reason of any such negligence on its part the hogs of' plaintiffs were loaded in the wrong car, so that the removal of them from the wrong car became or was necessary, and should further believe that the defendant, or its agent, negligently ordered the removal of the hogs, at a time or in a manner which, in view of the condition of plaintiffs’ hog in question in this case, would naturally or reasonably result in the — 597 — death of said hog, the jury should find for plainitffs, unless they believed from the evidence that the plaintiffs, or their agents, were themselves guilty of contributory negligence. Other instructions were given, which are not complained of. • We are of opinion that the above instruction does not present the law of the case. When a shipper appears at the station of a railroad company with live stock, which he intends to load and ship in the latter’s cars, it is the duty of the railroad company to designate the ear in which the stock should be loaded. It does not perform its full duty merely by using ordinary care. If the shipper, without first having made inquiry as to the ear in which his stock is to be loaded, should load it in the wrong car, he would do so, of course, entirely at his own risk; but if he first inquires of the railroad company, and asks that the proper car be designated, and the latter designates the wrong car, it is liable for such damages as naturally result from the removal made necessary by the improper directions, where such removal is required by the company. Upon the next trial, the court will instruct the jury as follows: “No. 1. If you believe from the evidence that the defendant or its agents, designated the car' in which Prank Smith’s hogs were loaded as the car in which plaintiffs should load their hogs, and that plaintiffs did load their hogs in said car, and that the defendant, or its agent, required plaintiffs to unload the hog in question and load him in another car at a time when it was not reasonably safe to do so, and that plaintiffs’ hog died as a result of such removal, you will find for plaintiffs the reasonable market value-of. the hog at said time, unless you believe that plaintiffs failed to use ordinary care in removing and — 598 — handling said hog, ánd 'that by reason thereof the death of the hog resulted. “No. 2. If, however, you believe that plaintiff’s hog was in such condition that he would have died notwithstanding such removal, or that defendant’s agent gave plaintiffs the privilege of letting the hog remain in the ear in which it was first loaded until it could be safely removed, or that the defendant did designate the proper ear for plaintiffs to load their hog in, and that the plaintiffs were themselves negligent in not loading their hog in the car so designated, or that the hog’s death resulted from the careless and negligent manner in which it was removed and thereafter handled, then, in any one of these events, you will find for the defendant.” Third. Appellants insist that the court erred in permitting one J. M. Logan to testify that he heard a hog squealing as it passed his house on the night in question. The purpose of offering this testimony was to show that the hog was very hot at the time, and would have probably died, even though it had not been loaded in one ear and subsequently removed to another. On the next trial this evidence should not be admitted, unless that hog that squealed is sufficiently identified as that belonging to appellants. For the reasons given, the judgment is reversed, and cause remanded for a new trial consistent with this opinion.