SOUTHERN PAC. CO. v. ARNETT et al., 111 F. 849

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. P'rom the foregoing analysis of the pleadings, it appears that it stood confessed at the trial that the cattle in question were kept loaded on the cars in making the journey from Caliente, Cal., to Reno, Nev., considerably more than 28 hours, the limit prescribed by

an act of congress for keeping stock confined in cars while in transit (Rev. St. § 4386); that there was considerable delay in starting the train from Reno after the cattle had beefi reloaded and made ready to start from that station; that they were kept on the cars continuously at least 36 hours while being transported from Reno to Ogden, Utah; and that as a result of the trip some of the cattle died, all were more or less injured, and that the owners of the herd sustained a considerable loss.

The principal defenses which the defendant company seems to have relied upon to shield itself from liability were these: That the cattle were in such a poor physical condition at the time of the shipment, which fact was unknown to the carrier, but was known to the shipper, that they could not have been transported for such a long distance without serious injury; and that whatever additional injury was sustained by their being kept in the cars beyond the period prescribed by law conld not be recovered by the plaintiffs, because their being so kept was due to the plaintiffs’ own fault, or to the fáult of their agents who had the stock in charge.

Much testimony was introduced at the trial tending to show the physical condition of the herd when the shipment took place, the various incidents of the journey, the causes which induced delay, the reasons why the cattle were not unloaded, watered, and fed more frequently, and who was responsible for the delay and the undue confinement of the cattle in the cars during the journey. The evidence on these points was somewhat conflicting, but the issues thus raised have been settled by the verdict of the jury.

The principal questions discussed in the briefs and at the bar, which we are required to consider, relate to' the admission and exclusion of evidence, and to the refusal of cert ain instructions which were asked by the defendant.

One of.the first contentions on the part of the defendant company is that the trial court should have directed a verdict in its favor because the complaint which was filed by the plaintiffs counted upon a violation of the common law duties of the carrier, while the answer and the proofs disclosed that the cattle were transported under a special contract which relieved the carrier from some of its stringent common-law obligations. We do not find that any question of this sort was raised or discussed in the .trial court, and, not having been raised below, it is not open to discussion here.

The action was brought by the plaintiffs in the ordinary form, the complaint alleging certain specific violations of duty on the part of the carrier, by reason whereof the plaintiffs had sustained damage. The defendant answered, pleading the existence of a special contract, and 'such immunity from its common-law obligations as it had thereby secured.

It did not insist that the special contract relieved it from liability for the wrongful acts alleged in the complaint, if they had been done in the manner and form alleged, nor did it insist that the plaintiffs could only recover for such injury as they had sustained by declaring upon the special contract, and on that alone.

While the defendant set forth the special agreement in its answer, the substance of its defense was that such damage as the plaintiffs had sustained they had themselves occasioned by offering unfit cattle for shipment, and by refusing to unload, feed, and water them at proper intervals, although they were afforded the requisite facilities for so doing.

The point under consideration was not only not made below, but if it had been we are aware of no rule of law which requires a shipper who has made a special contract to declare upon it, when he contends that the carrier has been guilty of some neglect of duty on account of which ■ he is liable notwithstanding the provisions of the contract. A special contract, when exacted by a carrier, is a defensive weapon, to be made use of by the carrier when sued by the shipper for any alleged dereliction of duty against which it was designed to afford protection.

The next proposition is that error was committed in permitting a witness by the name of Black, who was one of the men who had charge of the cattle on the trip from Caliente to Ogden, and who had followed the butchering business for many years, and in that capacity had had very much to do with cattle, to say that it took “a great deal longer to take this train” from Sacramento to Reno than any train “he had ever come over on the same road,” and to say, further, that “26 to 28 hours is long enough to keep cattle on the cars without feed or water.” The first of these statements was neither very important nor improper, while the witness’ acquaintance with cattle and knowledge of their habits and powers of endurance was much greater than that of the average person, and qualified him to say, as he did in substance, that 26 or 28 hours’ confinement of cattle on cars was long enough, because confinement for a longer period would wear them out, cause them to fall or lie down, and have a general bad effect.

It can scarcely be claimed that the admission of this testimony constituted a reversible error. The same view must be taken concerning several other exceptions to the admission of evidence.

One witness who had been a railroad conductor was allowed to say that the run from Caliente to Ogden “was a very poor run”; and with relation to the blowing out of the cylinder head of an engine, which occurred during the trip, and occasioned considerable delay, to say further that such accidents sometimes happen on railroads, but are more apt to happen “with a poor class of engines.” Another witness (one of the plaintiffs), who was a cattle dealer of ; large experience, and who met and inspected the herd at Ogden on its arrival, was allowed to testify, in substance, that the cattle had been on the cars and confined therein for such a length of time during the trip, and had been carried across such a country, that it would cause them to be in the bad condition in which he found them on their arrival at Ogden.

He was also allowed to answer the question whether it was customary on other roads, like that of the defendant company over which he had shipped cattle, to run stock trains at as low a rate of speed as 15^ miles per hour; there being testimony which tended to show that the train in question did not average a greater speed. The same witness was allowed to state that his experience with railroads had been that it was customary to give stock trains a right of way over all trains except passenger trains.

He was not allowed, however, to answer a question propounded on his cross-examination as to whether he had made an estimate of his entire loss on the cattle in controversy, in a letter written to the defendant company. This latter question was excluded, apparently, because it called for the contents of a written document which was not at the time produced and exhibited to the witness.

Another witness, who was a cattle dealer of considerable experience, and who also saw the herd on its arrival at Ogden, was allowed to testify, in substance, that the bad condition of the cattle on their arrival was due to the fact that they “had been very badly handled, and perhaps misused on the cars.” To the action of the trial judge in all of the foregoing instances, and in some others of a similar character which we may have overlooked, exceptions were reserved, and have been argued on appeal. But we are unable to say that the action of the lower court was materially erroneous.

The testimony was all germane to the various issues in the case, and, in so far as it consisted of opinions, it seems to have been elicited from persons who were well qualified by experience to express the same. It is manifest, we think, that the judgment below cannot be reversed because of the errors last enumerated, unless we are overtechnical in the application of the rules of evidence.

The special contract under which the cattle in question were transported provided, in substance, that any compensation for injuries claimed to have been sustained by the cattle while in transit should be adjusted between the parties on the basis of the declared or represented value of the stock at the time and place of shipment,—that is, at Caliente, Cal.,—and that the damages should not exceed the declared value.

With a view of showing, in accordance with the provisions of the special contract, what would have been the market value of the cattle at Caliente, taking into account the alleged injuries which they had sustained during the trip on account of the defendant’s negligence, a long hypothetical question, covering more than a page of the record, was propounded to one of the plaintiffs’ witnesses, who was allowed to answer it notwithstanding an objection which was interposed by the defendant company.

The objection was that the supposed facts as recited in the question were not fairly in accordance with the evidence which had been introduced by the plaintiffs. The question was not criticised in any other respect, nor did counsel point out with any degree of clearness wherein the assumed incidents of the journey, the condition of the cattle, and the hardships which they had undergone were not in conformity with the proof on those points, as it had been elicited from the plaintiffs’ witnesses.

In framing the hypothetical question, the plaintiffs had the right, of course, to assume that their own witnesses had told the truth, rather than the defendant’s witnesses, whenever there was any conflict; and while the question was long and involved, and while we may be permitted to doubt the expediency of allowing such complex questions .to be propounded in a case of this character, yet we are not able to hold that the objection actually interposed was tenable. The question, in our judgment, contained a reasonably fair

summary of all the material facts as they had at the time been testified to by the plaintiffs’ witnesses. The defendant company proposed to prove that while the cattle in controversy were being loaded on the cars at Caliente on November 3, 1898, one of the plaintiffs’ agents, who was supervising the loading, declared “that he had been buncoed”; also that he said, in substance, that the cattle were not the cattle that had been bought in the field; and that he suspended the loading for a short time, and threatened to unload those that were already on the cars.

These statements of the agent were excluded, and an exception was saved. The evidence consisted of unsworn declarations by a third party, who was not shown to have had any authority to bind the plaintiffs by making such statements concerning the condition of the cattle. Nor were they made under such circumstances that they can be regarded as admissible on the ground that they were the res gestae of

an act which the agent was then performing in behalf of his principal, nor was any foundation laid for introducing them in evidence for the purpose of impeaching the person by whom the statements are said to have been made.

The proposed testimony was properly excluded, and the same may be said of the action of the trial court in excluding similar statements which the defendant sought to prove by another witness by the name of Byers, who claims to have been present when the cattle were loaded, and to have heard certain disparaging remarks concerning the condition of the cattle, which were made by persons who were at the time in charge of the herd, and were assising in the loading of the same.

Complaint is further'made by the defendant because its chief train-dispatcher was not permitted to answer the question, “What care and diligence did the defendant exercise to prevent delay on the road in going forward and in overcoming any delay when it occurred?” But as the answer which the witness gave to that question was “that everything was done that could be done to prevent delay of this train in going forward and in overcoming any delay when it occurred,” and as this was a mere conclusion of law on the part of the witness which embodied no statement of the facts on which the conclusion was based, it is' manifest that no error was committed in excluding the question and the answer thereto.

The defendant company offered to read from the deposition of a ■witness by'the name' of S. J.

Root, who testified that he helped to load the. cattle on the cars at Caliente; that he had had experience in raising, feeding, and transporting cattle all his life; and was then 58 years old, and had made cattle raising his principal business,—a statement to the effect that, in his judgment, the cattle in question had not been well enough fed, and were not in a fit condition when shipped, to stand transportation from Caliente to a cold climate; that the change of climate would be injurious to them, and cause them to become numb, and to lie down and be unable to get up.

This statement was made in response to the question whether the change of climate in the month of November from Caliente to Ogden, Utah, or to Omaha, where the herd was eventually carried, would have any effect on the cattle in the condition that they were in, and, if so, what effect. The trial court excluded the answer to the question, and an exception was taken. It also refused to permit another witness, George E.

Root, who was 30 years old, and had had much experience in raising, feeding, and in taking care of cattle, and who saw the herd loaded on the cars at Caliente, and was well acquainted with it for some time prior to the shipment, to testify, in effect, and in response to an interrogatory, that shortly before the shipment one of the cattle in the herd, a full-grown animal, had died in the pasture where the herd was kept, because, -in his opinion, “he didn’t get enough feed.” It excluded another statement of the same witness, that shortly before the shipment the herd had been moved from one pasture to another because the feed iti the former pasture had “given out entirely,” and could “keep them no longer.” It also refused to permit this witness to answer the question whether the cattle in controversy, when shipped, “were in a fit and safe condition to be transported for three or four days upon railroad cars.” The trial court, refused to allow another witness, W.

II. Cuddy, who testified that lie was acquainted with the herd, and had the care and management of cattle all his life, and was 33 years old, to answer a similar question as to whether, in his opinion, the cattle at the time of the shipment were in a condition to he safely transported by rail for such a long distance as they were actually carried.

And it also declined to permit another witness, Henry Dubbers, who had had large experience in handling cattle, and who had seen and inspected the herd in question prior to the shipment, and found them, as he said, to be “weak and thin,” to say, in response to the inquiry what effect a change of climate in November from Caliente to Ogden would have upon cattle which were poor and weak, that such a change of climate would be disastrous; that the herd, as he saw it, were so poor and ill fed that they could not resist the shock, and “would be numbed, even by frost.” Proper exceptions were duly taken to the action of the court in each of the foregoing instances, and the exceptions have been urged in this court.

We are of opinion that each of the foregoing exceptions was well taken. The condition that the cattle were in when they were shipped was one of the principal issues in the case, inasmuch as the defendant contended that, through want of sufficient nourishment for some time prior to the shipment, the cattle were poor and weak, and incapable of withstanding the fatigue incident to a long journey by rail, and the cold that was encountered in transporting them over the high mountain ranges between Caliente, in southern California, and Ogden, Utah.

It contended, further, that the injuries complained of were not the result of any negligence on its part, but were due to the enfeebled condition of the cattle, and that they could not have been avoided by the exercise of that degree of care which the carrier was required to exercise.

It is obvious that the excluded evidence tended to support these contentions, and we are unable to say that any of the witnesses from whom the testimony was elicited lacked the experience which was necessary to qualify them to testify as experts concerning the condition of the cattle, and the probable effect of transporting them in their alleged enfeebled condition for a long distance and over high altitudes.

In view of their testimony showing the experience which they had severally had in handling cattle, we think that the trial court could not rightfully declare as a matter of law that they were incompetent to testify as experts, but are of the opinion that it was the province of the jury to determine, in the light of the experience which they professed to have had, what weight should be accorded to their testimony.

The witnesses were certainly competent to express an opinion as to the condition of the herd, and we think that they were more competent than ordinary persons to judge of the probable effects of fatigue, and how they would be affected by a sudden change from a warm to a colder climate. The excluded evidence was fully as relevant and competent as some expert testimony which the plaintiffs were allowed to introduce, and we are unable to discover in the record any sufficient reasons for its exclusion.

Nor are we able to say that the action of the court in excluding it was an immaterial error, which may be disregarded, in view of all the circumstances attending the trial, and the effect which the testimony might have had, if it had been admitted, on the assessment of the damages.

Counsel for the defendant have indulged in some criticism of the instructions which were given by the trial court, but no exceptions were taken to the instructions so given, except to the one which dealt with the measure of damages, and the exception in that behalf was very general, being merely, “We except * * * to the instruction given as to the measure of damages.” Counsel, as it seems, did not attempt to point out to the court in what respect the instruction cohcerning the measure of damage was erroneous or misleading.

In view of the provision in the special contract which required the damages, if any were claimed, to be adjusted on the basis of the value of the cattle at the place of shipment, and not to exceed the declared value at the time and place of shipment, the court in its charge gave the following directions, in substance, on the subject of damages: That in no event could the defendant be held responsible for any loss incident to the journey which resulted from the low vitality of the cattle, and was not induced by the carrier’s negligence; that, if such negligence on the part of the defendant had been shown as entitled the plaintiffs to recover, the measure of damage would be the difference in Value of the cattle at Caliente, Cal., on November 3, 1898, in the condition in which they were in fact delivered at Ogden, and the condition in which they should have been delivered had the defendant used due care; that it was not any difference in the value of the cattle at Caliente as they were shipped and when they arrived at Ogden which was recoverable, but a difference due to the defendant’s negligence, because some depreciation in value would necessarily result from the transportation of the cattle in a proper manner; that the value of the cattle in the condition in which they ought to have been delivered at Ogden and their value in the condition in which they were actually delivered should each be ascertained, the value in each instance being the market value at Caliente on November 3, 1898, and that in no event could the value of the cattle in the condition in which they should have been delivered exceed $20 per * head for grown animals and $5 per head for calves, because that was the maximum of value which was fixed by the special contract when the herd was received for shipment.

This part of the charge is criticised by counsel with a refinement of reasoning which is not usual, and,, as we think, would not have been appreciated by the jury; for the reason, as counsel say, that in fixing the market value of the cattle at Caliente when they were delivered for shipment the jury may have supposed from the language employed in one clause of the instruction that they were at liberty to place a higher value on the cattle than that fixed by the plaintiffs in the special contract, and that in this way the difference between the two values which was made the measure of damage might have been exaggerated.

We do not think that the paragraph of the charge in question is fairly susceptible of such an

interpretation; and we have no reason to suppose that it was interpreted by the jury as counsel assert that it might have been. The damages awarded certainly did not exceed the declared value of the cattle, for the sum allowed did not exceed $9 per head for grown animals. In view of 'all that was said by the court, we are satisfied that the rule for the admeasurement of damages was properly declared, and in language that was well understood. The defendant’s attorneys preferred numerous requests for instructions, and excepted to-the refusal of xi of such special requests.

But the instructions actually given embodied, as we think, the substance of these requests, in so far as they enunciated correct propositions of law.

The issues whether there was unreasonable delay in transporting the cattle, in view of all the circumstances attending their transportation; whether the defendant furnished reasonable facilities for unloading the cattle, so that they need not have been kept on, the cars longer than the statutory period; and whether the plaintiffs exercised proper care and diligence in availing themselves of such facilities or were remiss in the discharge of that duty, and by such neglect contributed to the injuries complained of,—were each clearly defined and fairly submitted to the jury; and these, in connection with the issue respecting the physical condition of the cattle when delivered to the carrier, were the most vital issues in the case.

Notwithstanding the complaint made by counsel that the court’s charge was too general, we do not conceive it to be probable that the defendant was prejudiced by the refusal to give any of the special requests, otherwise than as they were given in the general charge, since the jury were instructed, in substance, and in accordance with, the view maintained by the defendant, that if the plaintiffs failed to exercise ordinary care in availing themselves of reasonable facilities which were afforded by the carrier for feeding, watering, and resting the stock at proper intervals, then they could not be heard to complain on that account.

The defendant company was thus given the benefit of its plea of contributory negligence, in so far as that plea was supported by the proof. Upon the whole, we conclude that the record discloses no material error other than the one heretofore pointed out, on account of which we deem it necessary to reverse the judgment, and direct a new trial. It is so ordered.