
    Charles Hayman et al., App'lts, v. The Philadelphia and Reading R. R. Co., Resp't.
    
      (New York Superior Court, General Term,
    
    
      Filed December 30, 1886.)
    
    
      1. Common carrier—Liability in transportation op live stock.
    In the transportation of live stock in the absence of negligence, the carrier is relieved from the responsibility for such injury as occurs in consequence of the vitality of the freight. He does not absolutely warrant live freight against the consequence of its own vitality. Following Cragin v. N. Y. Central R. R. Co., 51 N. Y., 61.
    3. Same—Negligence—When not proven.
    In a case where it appeared that the car in which horses were shipped was good and suitable for the purpose when the car was loaded, and that during the passage a slat in the car became broken, but there was no evidence to show such break was occasioned by any negligence of the carrier. On the contrary, it appeared that one of the horses in the car was kicking violently, and that said break was repaired properly. At the end of the trip a slat was again found to be broken and the horse injured. The action was to recover damages. Held, that to sustain the cause of action the burden of proof was upon the plaintiff to show facts from which the jury would be justified in finding that there was an omission of duty upon the part of the defendant. That it was not sufficient to show that the horse was injured. That it was proper to direct a verdict for the defendant.
    3. Same—Evidence of negligence.
    The fact that the car was allowed to stand for one or two hours after it was loaded, was not of itself evidence of negligence.
    Appeal from judgment entered upon verdict for the defendant under the direction of the court.
    
      Leonard Bronner, for app’lts; Frank L. Hall, for resp’t.
   Ingraham, J.

The rule in relation to the liability of a common carrier for the transportation of live stock is stated by Earle, commissioner, in Cragin v. N. Y. Central R. R. (51 N. Y., 61): “In the transportation of such stock in the absence of negligence, the carrier is relieved from the responsibility for such injury as occurs in consequence of the vitality of the freight. He does not absolutely warrant live freight against the consequence of its own vitality. Animals may injure or destroy themselves or each other; they may die from fright or starvation because they refuse to eat or they may die from heat or cold. In all such cases the carrier is relieved from responsibility, if he can show he has provided suitable means of transportation and exercises that degree of care which the nature of the property requires. It is not sufficient therefore to make the defendants liable to show that the horse was injured. ■ It is necessary that the jury can find from the evidence that there was some neglect or omission of duty upon the part of the defendant.

In this case the uncontradicted evidence shows that the car in which the horse was shipped was good and suitable for the purpose when the car was loaded, and that during the passage a slat in the car became broken; but there was no evidence to show that such break was occasioned by any negligence of the defendants. On the contrary it; appeared that one of the horses in the car was kicking violently. That break was repaired as the witness stated in a proper manner, and at the end of the trip a slat was again found to be broken and the horse injured. There is no evidence to show that the broken slat caused the injury or that any act of the defendants could have prevented the accident.

The injury being one “that occurred in consequence of the vitality of the freight,” to sustain the cause of action the burden of proof was upon the plaintiff to show facts from which the jury would be justified in finding that there was omission of duty upon the part of the defendant. The fact that the car was allowed to stand for one or two hours after it was loaded was not of itself evidence of negligence. It did not appear that the fact that the car was allowed to stand caused the injury; nor was there any evidence to show that the car could have been moved sooner than it was. '

We are of opinion that the verdict was properly directed for the defendant and the judgment should be affirmed, with costs.

Sedgwick, J., concurs.  