Cockrill v. Missouri, Kansas & Texas Railway Co. , 90 Kan. 650 ( 1913 )

Thé opinion of the court was delivered by

West, J.:

The plaintiff sued for damages to a caxload ■of cattle alleged to have been shipped, by oral agreement, over the defendant’s road from Parker, Kan., to the Kansas City Stockyards in Kansas City, Kan., averring'that the defendant furnished a defective car, which was switched back and forth at Paola for four or five hours, delaying the shipment and causing four of the cattle to be killed and four crippled and rendered unfit for the market, to the plaintiff’s damage of $350. The answer alleged that the shipment was made under a written contract by the terms of which the defendant was to- deliver the cattle to the consignee at Kansas City, Mo., and written notice of any loss or injury should be given before the shipment should leave the -defendant’s lines or be mingled with other live stock ■or removed from pens at destination. The reply alleged that if the defendant did sign the contract set up in the answer it was because he was compelled to do so after the cattle were received for shipment and loaded and that he was not apprised of its terms or offered any choice of rates therein referred to, but was advised that unless he signed, the cattle would not be shipped; that he was not familiar with the terms of the contract and did not agree to any of them; and '.further, that the representative of the defendant had actual knowledge-of the condition of the cattle upon their arrival at the destination. The jury found in ■favor of the plaintiff in the sum of $295.25, being $135.25 for cattle killed, $65 for those crippled, $45 for inability to “take the fill,” and $50 for loss of market. The last two items were remitted, and judgment was entered for $200.25 and. costs.

The defendant appeals and complains that the court refused it the right to pursue the plaintiff- on cross-examination as to his connection with the notorious Buckfoot sprinters for the purpose of affecting his credibility. An offer to go into details was overruled, but the defendant was permitted to inquire and the plaintiff was required to answer touching his' arrest in connection with the leader of this band on the charge of obtaining moiiey fraudulently. The plaintiff having taken the stand as a witness thereby held himself out as-truthful and reliable; and under the well-settled rule in this state the defendant had a right to search into his previous life and conduct for The purpose of enabling the. jury To'judge as to his character and credit. The limit to which such cross-examination should go is ordinarily discretionary with the trial' court (The State v. Pugh, 75 Kan. 792, 796, 90 Pac. 242; Ramsey v. Partridge, 86 Kan. 398, 121 Pac. 343), and while in this case it was unnecessarily restricted, still, as the plaintiff testified mainly as to the shipment, its value and returns, on all of which points there was other • testimony, the defendant suffered no material .prejudice by the restriction. The court admitted- the report the commission company made to the plaintiff, and stated by him to be substantially correct as he remembered it, and which' was evidently- the basis on which he settled for the shipment. This was competent as a memorandum to refresh his memory-touching the sums realized for the dead and crippled-cattle, its weight and probative force being for the jury. (McNeely v. Duff, 50 Kan. 488, 31 Pac. 1061; Telegraph Co. v. Collins, 7 Kan. App. 97, 53 Pac. 74.)

Certain reports, telegrams and memoranda touching the shipment made by the trainmen in the line of their duty were rejected on the' ground of incompetency. These were proper reports of transactions or events made in the regular course of business and were admissible under section 384 of the civil code (Richolson v. Ferguson, 87 Kan. 411, 124 Pac. 360; Barker v. Railway Co., 88 Kan. 767, 129 Pac. 1151), but as the witnesses stated substantially all that was shown by these reports no material prejudice is deemed to have arisen from the ruling.

Complaint is made of an instruction that the written notice provided for in the contract does not apply tó animals which are dead when they leave the defendant’s control or to those so nearly dead that they could not be removed by the plaintiff. The jury found that upon unloading the shipment four cattle were dead and three crippled and that these seven were removed from the car after the others had been unloaded. The testimony shows that the defendant had a switch foreman at the place of unloading who looked after the handling of stock, and whose duty.it was to report when he set cattle at the chute, and that the report of the stockyards company in this case stated as the cause of the delay the removal of the dead and crippled cattle, and that this notation was made after the car was set at the chute and after the stock had been unloaded. Under these circumstances we see no possible benefit which the defendant could have derived by receiving a written notice of what it already knew respecting these dead and crippled cattle. (Railway Co. v. Fry, 74 Kan. 546, 87 Pac. 754; Railway Co. v. Frogley, 75 Kan. 440, 89 Pac. 903; Darling v. Railway Co., 76 Kan. 893, 901, 93 Pac. 612; Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132.)

An instruction and certain special findings touching the contract in question and the matter of different rates for the shipment are criticised. If the blank contract was signed by the shipper in response to a statement of the agent that otherwise the cattle would not go out, as claimed by the plaintiff, and if as also claimed by him he had no knowledge of the existence of different rates, then of course the defendant would be liable for the cattle killed or crippled by its negligence. If on the other hand the contract when filled out was in all respects binding on the plaintiff the defendant would still be liable for negligently killing or crippling the cattle if proper written notice were given, or if without such notice the defendant knew the condition of the cattle while unloading as fully as it could have known by such notice. Therefore the instructions and questions referred to become immaterial.

It is insisted that the finding that the defendant’s foreman at the stockyards examined the cattle when they were being unloaded and reported their condition was entirely unsupported by the evidence, but the testimony of one of the defendant’s witnesses as set out in the counter-abstract sustains the finding. (Hayes v. Railway Co., 84 Kan. 1, 5, 113 Pac. 421.)

One or two of the jury’s answers to questions touching the duty and relation of the stockyards company justify some complaint, but in view of the other findings and the testimony no prejudicial error is apparent.

Complaint is also made that certain questions submitted by the defendant were answered contrary to the evidence, but we find nothing of substance in this respect.

Certain testimony touching statements made by the plaintiff upon a former trial, rejected by the court and on the motion for a new trial produced by affidavit, is regarded by the defendant as material, but as it touched the contract of shipment only we think,.as already indicated, that whatever view of such contract be taken the entire evidence fairly tended to show liability for so much of the damage as was covered by the final judgment of the court.

Finding in the record no error materially prejudicial to the defendant the judgment is affirmed.