Bartelt v. Oregon Railroad & Navigation Co.

Citations

• 57 Wash. 16
• 106 P. 487
• 1910 Wash. LEXIS 685

Syllabus

<p>Carriers — Of Live Stock — Negligence—Burden of Proof. Where the shipper of live stock accompanies the same, the burden is upon him to prove negligence in transit resulting in injury to the stock.</p> <p>Same — Contract—Conditions—Exemption from Liability. The agreement of a shipper of live stock to unload, load, feed, water and care for the stock in transit, is binding upon him, but does not exempt the carrier from liability for any negligent act in transporting the stock; nor could it do so by contract.</p> <p>Same — Negligence—Evidence—Sufficiency. There is sufficient evidence of negligence in the operation of a train, and that the same resulted in injury to live stock shipped thereon, where it appears that two car loads of young mares were properly loaded, the number in each car was consistent with proper handling, that they were unloaded and fed and reloaded in good condition at U., after which the cars were chugged and jammed nearly all the way, the conductor stating that the engine was overloaded, that the cars were jammed in switching, horses being thrown to the floor, and at the end of the journey one of them was found to have a dislocated shoulder, another a dislocated hip, and two had slipped their foals; although the evidence as to the rough handling of the train was conflicting.</p> <p>Same — Negligence—Evidence. The carrier of live stock accepting mares for shipment is chargeable with notice that they are heavy in foal. ></p> <p>Pleading — Variance—Waiver—Carriers. It is not a fatal variance that the pleading alleged an implied contract to carry and deliver live stock as at common law, and the proof showed a special contract by bill of lading, where the proof was admitted without objection.</p> <p>Carriers — Of Live Stock — Action for Negligence — Form—Pleading — Immaterial Variance. A common law action against a carrier of live stock for negligent acts in the operation of the train resulting in injury to the stock is maintainable irrespective of th