Shuart v. Erie Railroad

Headnote

Shuart v. Erie R. R. Co., 166 App. Div. 895 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 15, 1914, affirming a judgment in favor of plaintiffs entered upon a verdict in an action to recover for injury to certain horses through the alleged negligence of the defendant. Plaintiffs shipped the horses under a “ live stock contract.” On arrival of the car at its destination it was immediately placed in position at the cattle chute by defendant’s employees. The plaintiffs were then on hand and proceeded to prepare the car for unloading; they opened the car door, put

down the bridge that connected the car with the chute, and proceeded with their work preparatory to taking the horses out of the car. Before any of the horses were removed from the car, it was accidentally moved by defendant, resulting in injury to five of the horses. One of the provisions of the live stock contract was to the effect that no claim for damages which might accrue to the shipper shall be allowed or paid by the carrier or sued for in any court, unless a claim for such loss or damage should be made in writing, verified by the affidavit of the shipper or his agent, and delivered within five days from the time the stock is removed from the car to some proper officer or agent of the defendant. It was admitted by plaintiffs that they never made out or delivered any paper or claim to defendant with respect to the damage to the horses.