WILKE v. ILLINOIS CENTRAL RAILROAD CO. [SUPREME COURT OF IOWA, DECEMBER 18, 1911.] Iowa, 133 N. W. 746. 1. Carriers-Live Stock-Exposure to Heat-Burden of Proof. The burden of proving that the undue exposure of car loads of stock to heat, resulted from or was contributed to by the carrier's negligence, rests upon the shipper, if he accompanies the shipment in person or by agent. 2. Carriers-Injury to Live Stock-Exposure-Degree of Care. The measure of care required of a carrier to avoid injury to stock in transit, from changes in temperature, is reasonable care and not the highest possible degree of care. 3. Appeal-Instructions-Prejudicial Error. Erroneous instructions will be deemed to have been prejudicial where the jury reached a final agreement only after twenty-four hours delay, and when an additional instruction as to the desirability of their reaching a decision, if practicable, had been given to them. Appeal by defendant from a judgment of the District Court of Hamilton County, rendered in favor of plaintiff, William Wilke, in an action brought to recover damages for loss of hogs due to heat while being transported by defendant. Reversed. For appellant-Wesley Martin, and Kelleher & O'Connor. For appellee-J. W. Lee, and D. C. Chase. them, to give them that attention which they require as living animals, and he cannot treat them as inanimate freight. They absolutely require ventilation and to be fed and watered; and if the carrier has not provided otherwise by contract with the owner when he accepts them for transportation, it becomes as obligatory upon him to care and provide for them in these respects, as their necessities may require, as to provide for them safe vehicles for transportation. If, for instance, a railroad company accepts hogs for transportation, which, from the crowded condition in which they are necessarily carried upon its cars, are liable to die PETITION. The plaintiff in his original petition alleges that on the 4th day of June, 1904, he delivered to the defendant two car loads of hogs for shipment to Chicago, Ill., one from Webster City, Ia., and one from Wilke, Ia., and that the defendant accepted and agreed to deliver said stock and undertook the shipment as aforesaid. That during the transit of said stock and at a place a short distance west of Cedar Falls, Iowa, defendant stopped its train carrying stock in a deep cut where the high banks of earth on either side of the train prevented any breeze from reaching said stock. That it was a very hot day, and that defendant wrongfully kept its train standing in said hot and suffocating cut for a long period of time and as a result of said exposure to heat twenty-seven of plaintiff's hogs died. That shortly after said train was stopped in said cut as aforesaid, plaintiff notified defendant that said stock was suffering from heat and requested defendant to move its train out of said cut to some place where the breeze could reach said stock and to take such steps as were necessary to prevent said stock from dying from suffocation, but that defendant. neglected and refused to move said train or protect said stock or furnish any relief to said stock. That said injuries were without fault on plaintiff's part and due wholly to defendant's negligence, and plaintiff was damaged in the sum of $371.31. AMENDED PETITION. When said cars in which defendant company carried said plaintiff's stock arrived at their destination, twenty-seven of the hogs were dead, and those not dead were in a bad condition and shrunk in weight, and that the death of said hogs and the great and unusual shrinkage referred to, occurred while said hogs were in defendant's care, and while they were being transported as aforesaid. from overheating, it is the duty of the agents of the road to apply water to them externally when it is found necessary to prevent such overheating, and if they fail to do so, the company is liable." A carrier will not be relieved from liability, if by the exercise of proper care, the effect of the weather conditions upon the stock could have been avoided. Thus, in McCrary v. Missouri, K. & T. R. Co., 99 Mo. App. 518 (1903), a carrier was held liable for the loss of a number of hogs which were loaded by direction of the carrier's agent just prior to the scheduled arrival of the train, because of an unnecessary delay at certain points along the line, when the cars were left standing for several hours exposed to the heat, in consequence of which the hogs became overheated to a greater extent than if the delays had not occurred. The mere fact that the stock That said hogs were alive and in good sound condition when delivered to defendant company for shipment. ANSWER. Defendant answered with a general denial except as to what is admitted. It admits that on or about the 4th day of June, 1905, it received for transportation from plaintiff certain hogs consigned for Chicago, but denies all negligence on its part. MCCLAIN, J. Plaintiff shipped two car loads of hogs over defendant's road, one from Webster City, and the other from Wilke, to Chicago, the two cars being contained in the same train; and, when the cars reached their destination, some of the hogs were found to have died, according to plaintiff's allegations, as the result of excessive heat. The specific charges of negligence on which plaintiff asked to recover damages for his loss were that during the transit, the days being very hot, the defendant left the train containing these two cars of hogs standing for several hours near Cedar Falls in a deep cut, where no breeze could reach them, and that notwithstanding notifica. tion from plaintiff that the animals were suffering from heat, and the request of plaintiff to defendant to move its train out of said cut to some place where the breeze could reach the animals so as to prevent injury to them from the excessive heat, defendant neglected and refused to move said train or to protect said stock or to furnish any relief for a long time thereafter, and that the injury resulting could have been prevented by the exercise of ordinary care on defendant's part, and was not due to any negligence or carelessness on the part of the plaintiff. The defendant denied the allegations of negligence. Plaintiff then amended his petition by alleging that plaintiff delivered to defendant the hogs referred to in good, sound, healthy condition, and that, when the cars containing the animals arrived at their des arrived in market on scheduled time was held not to relieve the carrier from liability for the damages sustained. And in an action brought to recover damages for negligence and delay in transporting a number of beeves which were injured on account of heat and thirst, the court held that it was proper to refuse to give an instruction to the jury that "if any cattle were injured or had died from effects of being overheated on account of hot weather, then plaintiff could not re cover for such loss," since such charge would tend to eliminate from the consideration of the jury the condition of the weather in determining the question as to the want of care on the part of the carrier on the matter of facilities for watering the cattle. Missouri Pac. R. Co. v. Cornwall, 70 Tex. 611 (1888). II. Failure to Water or Shower Hogs. A carrier which accepts for transportation live stock, such as hogs, which tination, a certain number of the hogs were dead, and those not dead were greatly shrunk in weight, and were sick and in bad condition, and that the death and unusual shrinkage and sickness referred to occurred while the hogs were in defendant's care and being transported. To this amendment the defendant answered, denying the allegations, and alleging contributory negligence of plaintiff in loading and handling the animals while in charge of them during transportation, and that any loss occurring resulted from such contributory negligence, and from the sudden and unexpected rise in temperature and excessive heat. By way of reply the plaintiff denied the affirmative allegations in defendant's answer as amended. During the introduction of the evidence, and in connection with the testimony of one Lloyd Bickford, who said that he accompanied the stock as the agent of plaintiff until the train reached Waterloo, which is east of Cedar Falls on defendant's line of road, where he got off the train in which the hogs were being transported to eat dinner, and there missed the train on which the hogs were carried from Waterloo to Chicago, taking another train for that destination. The contract of shipment between plaintiff and defendant, signed also by the witness as the person in charge of and accompanying the stock, was offered in evidence, describing the car of hogs shipped from Webster City; and another contract in the same form, but signed by another person as the person accompanying the hogs, relating to the car load shipped from Wilke, was also introduced. In these contracts it was provided that the cars were to be in charge of the shipper or his agents while in transit, that he assumed the duty of loading and unloading, and that the defendant company would not be liable for any loss or damage to the stock caused by heat or suffocation or for any loss or damage, however caused, not resulting from gross negligence of defendant, and further, that the shipper would at all times take care of is liable to be injured in consequence of overheating, must shower the animals when necessary, and in case of its failure to do so, it must respond in damages. Ill. Cent. R. Co. v. Adams, 42 Ill. 474, 92 Am. Dec. 85 (1867); Toledo, W. & W. R. Co. v. Thompson, 71 Ill. 434 (1874); Toledo, W. & W. R. Co. v. Hamilton, 76 Ill. 393 (1875); Wallace v. Lake Shore & M. S. R. Co., 133 Mich. 633, 95 N. W. 750 (1903); Lake Shore & M. S. R. Co. v. Gibson, 28 Ohio C. C. 538 (1904). The carrier will not be relieved of liability because the shipper overcrowded the car in loading the same, or because the carrier was not accustomed to shower animals en route unless ordered to do so by the shipper. Lake Shore & M. S. R. Co. v. Gibson, supra. And the scarcity of water will not excuse the carrier from the performance of its duty, where it failed to notify the shipper of such scarcity. Toledo, W. & W. R. Co. v. Thompson, supra. In Peck v. Chicago, G. W. R. Co., 138 the stock at his own expense and risk, free transportation being given to the shipper or his bona fide employee in charge of the stock for that purpose. At the conclusion of the evidence, defendant offered an amendment to its answer to conform the pleadings to the evidence, alleging that the shipment was made under the two contracts above referred to, by the terms of which plaintiff agreed to take care of the stock and give it the necessary care and attention while the train was not in motion, and that he or his authorized employee would accompany the train for that purpose; and that, by reason of such contract, plaintiff could not recover on account of failure of defendant to water and care for the stock or on account of any of the other matters referred to in the contract as those which plaintiff agreed to perform. The court refused to permit the filing of this amendment on the ground that the defendant must have had as much knowledge as the plaintiff in regard to the existence of these contracts at the commencement of the suit, and that the court had made rulings on the introduction of evidence under the pleading as they existed which would have been erroneous if the contracts had been pleaded before the evidence was introduced. The principal complaint on behalf of appellant is as to the giving of instructions in which it was assumed that the amendment to plaintiff's petition alleging that the hogs were alive and in good, sound, healthy condition when delivered to defendant for shipment, and that, when they arrived at their destination, some of them were dead, and the others greatly shrunken in weight and sick and in bad condition, such loss and damages occurring while the hogs were in defendant's care during transportation, stated an independent cause of action, with reference to which the jurors were instructed that proof of the fact Iowa, 187, 115 N. W. 1113, 16 L. R. A. (N. S.) 883 (1908), it was held that a carrier which received hogs for transportation during hot weather, upon being notified by the shipper that the hogs will require showering en route to keep them in proper condition and avoid shrinkage, is liable for the loss of hogs caused by overheating, due to its fail. ure to shower the animals. It was held in Lachner Bros. v. Adams Express Co., 72 Mo. App. 13 (1897), to be a question for the jury whether the carrier's failure to supply necessary air and water to a hog ship ped in a crate, was the cause of its death, where the evidence showed that the crate was properly constructed with a water-tight bottom, that three gallons of water had been placed therein for the animal, that the crate was delivered to the carrier on a hot day to be transported to a point about three hours distant, that shortly after the train had started the water placed in the crate had escaped therefrom, and that the express messenger failed to replace the same, although his attention was called thereto. It is the duty of a carrier to provide |