Haner v. Fargo

The plaintiffs were horse dealers. They resided at Catskill, N. Y. In February, 1912, they purchased at Chicago 28 horses. They entered into a written contract with the American Express Company, of which the defendant is president, to ship the horses to Catskill. Under said contract the plaintiffs agreed to take care of the horses while they were on the road. One of the plaintiffs accompanied the horses, on free transportation furnished by the defendant, for that purpose. The plaintiffs also in writing requested the express company not to unload the horses in transit. This request was made by authority of section 1 of chapter 3594 of the act of Congress of June 29, 1906; otherwise, it would have been the duty of the express company under the law to unload the horses for feed and rest after 28 hours. In order to feed and water and rest the horses, it would have been necessary to unload them from the car. Not to exceed 36 hours was the length of time, according to the regular train schedule, which the plaintiffs stated, in writing, that they understood the trip would consume. The horses were sent on and arrived at Catskill some hours late — -the plaintiffs say 5 hours; the defendant says about 2. The animals were taken by the plaintiffs to their stables, and very soon after they arrived there some of them developed contagious pneumonia. All of them subsequently were afflicted. One horse died in about 40 hours after its arrival. Twenty-two out of the 28 died within 2 weeks.

The complaint alleges that the death of the horses was caused by the negligence of the defendant. Four specifications of negligence are asserted: First, that the defendant failed to furnish the kind of car agreed upon; second, that the horses were delayed on the road an unreasonable length of time beyond the 36 hours; third, that the defendant closed the ventilators of the car, so that the horses were deprived of sufficient air; fourth, that in violation of the federal statute the defendant detained the animals on the road more than 36 hours without affording the plaintiffs an opportunity to unload, feed, water, or rest them, and refusing plaintiffs such opportunity.

[1] The last specification may be considered first. By written agreement the plaintiffs contracted that:

“The shipper agrees to load, transship, and unload said animals at his own risk, and during the transportation thereof to unload and load said animals whenever the same may be necessary or required, at his own risk, and to furnish the necessary laborers therefor, and further agrees to cause the necessary attendants to accompany and take charge of said animals. * * * ”

The federal statute forbade the defendant to confine the horses beyond 36 hours without unloading, feeding, watering, and resting them, unless prevented from so doing by accidental causes. The defendant, very evidently, expected to comply with the law. The regular train schedule time of the railroads over which the defendant was

[2] In close connection with the fourth specification comes the third, the allegation concerning the lack of ventilation. Deyo went with the horses to take care of them. He seems to have taken very little care, and to have paid very little attention to the horses. The car was equipped with 40 ventilators, besides windows. If the car needed ventilation, it was Deyo’s duty to open the ventilators, or to cause the defendant to do so. He made no effort in that direction. He made no complaint, according to his own testimony, except at Detroit; and then, instead of staying by the horse car and attending to the matter, as was his duty, he went away after a few minutes. The plaintiffs cannot hold the defendant for something which it was their duty to attend to. Penn v. Buffalo & Erie R. R. Co., 49 N. Y. 204 , 10 Am. Rep. 355 .

The contention that the defendant failed to furnish the kind of car agreed upon the plaintiffs do not seem seriously to urge. But the evidence is overwhelming that the car was one of the very best horse cars owned by the Arms Palace Car Company. It was built in the Pullman shops, and was one of the largest and finest of that type of cars. Clearly no negligence can be predicated on the assertion that the car was not up to contract.

[3] What caused the horses to be sick? There is some evidence that several of the horses had just come out of a hospital, and were infected with the disease before they were put in the car. But the jury seems to have rejected that evidence. The allegation of negligence which the plaintiffs most vigorously urge is the fact that the horses were delayed on the road more than 36 hours and thereby made sick. There is a serious conflict of evidence as to the length of this delay, but the jury has found with the plaintiffs, and therefore, assuming that the horses were kept in the cars 5 hours longer than they should have been kept, the question arises: Did this delay cause the sickness ? The defendant cannot be charged, it must be remembered, for the first 36 hours. That was not negligence. The defendant had a right to consume that length of time in transporting the horses, keeping the horses on the road beyond the 36 hours, were they madt sick — sick with contagious pneumonia ? If the train had arrived within the 36 hours, would the horses have remained well ?

There is no such evidence, -and therefore the verdict is without support, and must be reversed. All concur.