October 1, 2012

Burnside & C. R. Ry. Co. v. Tupman, Pulaski, 1903

BURNSIDE & C. R. RY. CO. v. TUPMAN.

COURT OF APPEALS OF KENTUCKY

72 S.W. 786; 1903 Ky. LEXIS 430; 24 Ky. L. Rptr. 2052

March 19, 1903, Decided

PRIOR HISTORY:  [**1] Appeal from Circuit Court, Pulaski County. Action by Benj. F. Tupman against the Burnside & Cumberland River Railway Company. Judgment for plaintiff, and defendant appeals.

DISPOSITION: Affirmed.

COUNSEL: O. H. Waddle, for appellant.

Denton & Robinson, for appellee.

JUDGES: BURNAM, C. J.

OPINION BY: BURNAM

OPINION

 [*786]  BURNAM, C. J. On the 7th day of December, 1898, the appellant, the Burnside & Cumberland River Railway Company, contracted with the appellee, B. F. Tupman, to transport a car load of mules and homes from Burnside Landing to Burnside Junction, both points being on its own line of road, and, as the agent of the shipper, to forward it to him at Shelman, Ga., in consideration of $107.50.

On the 18th of May, 1901, Tupman instituted this suit against the railway company, in which he alleges that, at the time of the shipment, the mules and horses were put into a defective car, to which he objected, but that the agent of the defendant assured him that it was sufficient, and guarantied it to be all right, and that, relying upon these representations and guaranty, he consented that his stock might be shipped therein; that, by reason of the defective condition of this car, one of his mules had hip broken, and was rendered worthless, and that  [**2] a number of others were so crippled, cut, gashed, maimed, and disfigured as to greatly depreciate their salable value; that all of the injury was caused by the defective car and the negligence of the defendant; and asked a judgment for $300 in damages. The answer of the defendant traversed all the affirmative averments of the petition, and denied the alleged representation, and guaranty as to the sufficiency of the car, and pleaded that, under the terms of the contract of shipment, their liability for injuries to stock was confined to such injuries as might be received on their line of road.

The testimony shows that the defendant's road runs from Burnside Landing to Burnside Junction, a point on the Cincinnati Southern Railway, a distance of a little more than a mile. The substance of the testimony for the plaintiff was to the effect that he objected to the car in which the railway company proposed to ship his stock, on the ground that the slats were too far apart, and that it was otherwise defective; that he pointed out these defects to the agent of the company, who assured him that the car was all right, and said that they would guaranty that his stock could be safely transported  [**3] therein to their destination in Georgia; that, only a few minutes after the stock had been loaded, he saw the leg of one of his mules sticking out between the slats, some four or five feet from the bottom of the car; that the slat was sawed in two, and the mule released, but that, when they arrived at their destination in Georgia, this mule had a broken hip, and in consequence thereof had become worthless; and that several slats on the car had been broken and nailed up, and that other mules were considerably injured. The agent of the company denied the alleged guaranty of the sufficiency of the car, but testified that it was in good condition, and that plaintiff made no objection to it when it was pointed out. The trial resulted in a verdict and judgment for the plaintiff for $200, and a reversal is asked: First, because the court erred in giving to the jury the following instruction: "If the jury believe from the evidence that any of plaintiff's stock mentioned in evidence were injured or damaged by reason of a defective or unsuitable car furnished by defendant for shipment, and that the defendant guarantied that the car was safe, and that plaintiff, relying on the guaranty, loaded  [**4] the stock, and any of the stock were injured by reason of the defective or unsuitable condition of the car, you will find for the plaintiff such a sum, not exceeding $300.00, as you may believe from the evidence will fully compensate him for the injury, if any, to the stock. The defendant is not responsible for any injury occurring to the stock beyond its line, unless caused solely by reason of the car in which  [*787]  they were shipped being defective or unsuitable." If defendant guarantied the sufficiency of the car for the purpose for which it was to be used, they were liable for the damages resulting from such breach, whether it occurred on their own line of road or after the delivery of the car to the connecting lines of railway. And the instruction is based wholly upon this theory, and in our opinion aptly states the law applicable to the facts in issue in this case. It concedes defendant's contention that they were not responsible for any injury occurring to the stock beyond their line, unless caused by reason of the defective and unsuitable condition of the car exclusively.

Upon the trial the defendant offered to introduce records of connecting railway lines for the purpose of showing  [**5] that the stock were in good condition when they arrived at Chattanooga, Tenn., and that the injuries were received after the car was delivered to the Southern Railway beyond that point In our opinion this testimony was properly excluded.

They also complain that the trial court did not sustain their plea of limitation to the suit under section 2516 of the Kentucky Statutes, which provides that: "An action * * * for injuries to cattle or stock by a railroad * * * shall be commenced within one year next after the cause accrued, and not thereafter." This is not an action for tort, but for a breach of contract, and the statute relied on has no application. The limitation to actions of this character is regulated by the provisions of section 2515, and must be brought within five years after the accrual of the right We are therefore of the opinion that the trial court did not err in sustaining a demurrer to the plea of limitation, or in either of the other grounds relied on for a reversal.

Judgment affirmed.

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