
    SCHAFF, Rec., v. RICHARDSON.
    No. 16485
    Opinion Filed June 1. 1926.
    Rehearing Denied July 27, 1926.
    1. Damages — Recovery Denied Where Plaintiff’s Unlawful Act is Concurring Cause.
    Where a plaintiff’s own unlawful act concurs in causing the damage he complains of,, he cannot recover edmpensation for such damage.
    2. Same — Animals — Nonliability of Railroad (for) Infection of Hogs in Pens.
    Record examined, and held, that the evidence adduced on the trial of the instant case was not 'sufficient tol support the verdict of the jury and the judgment rendered thereon.
    (Syllabus by Pinkham, C.)
    Commissioners’ Opinion, Division No. 5.
    Error from District Court, Greer County; T. P. Clay, Judge.
    Action by P. K. Richardsofn against Charles E. Schaff, Receiver of the Wichita Falls & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error.
    Reversed.
    A. M. Stewart, Wm. M. Williams, and C. C. Huff, for plaintiff in error.
    W. B. Garrett, for defendant in error.
   Opinion by

PINKHAM, O.

This action was instituted by tbe defendant in error, P. K. Riebardscln, as plaintiff, against tbe plaintiff in-error, Charles IS. Schaff, receiver of the Wichita Falls & Northwestern Railway Company, as defendant, in tbe district court of Greer county, to recover damages against the defendant in the sum of $3,807.50, with interest tberecin. Tbe parties will be referred to as plaintiff and defendant, as they appeared in the trial court.

Plaintiff in bis petition alleges that tbe sum of $3,807.50 is due him by reason of tbe negligence of tbe defendant in allowing tbe stock pens of the railway company to become infected with bog cholera, and that at tbe time of tbe matters complained of tbe plaintiff was not aware that said bog pens were infected with bog cholera, and that be bad no notice of such fact; that by reason of tbe fact that at tbe time of plaintiff’s shipment of certain bogs c!n the 6th or 7th day of October, 1922, from the pens of defendant company, be was compelled to return to his own feed lot -a part of bits intended shipment fo!r tbe reason that tbe capacity of tbe ear furnished bim by tbe railway company was not sufficient to contain all of the hogs which he bad caused to be sant to defendant’s stock pens; that tbe bogs which be returned to bis own pens bad became infected, and that they thereby infected all of tbe bogs in bis pens, and that be lost, by reason of said infection of bis bogs with bog cholera, a large number of tbe total value of $3,807.50 at tbe time off their death, between October 21 and November 1, 1922.

For answer -the defendant alleges : First, that tbe allegations contained in plaintiff’s petition dc not state facts sufficient to constitute a/ cause of actioln against tbe defendant; second, it denies generally and specifically each and every material allegation contained in plaintiff’s petition; third, tbe defendant denies generally all allegations of negligence, or that its acts contributed or caused damage to plaintiff’s bogs; and further states that if-plaintiff suffered any damage to bis bogs, such damage was tbe proximate result of contributory negligence of plaintiff and by plaintiff’s violation of the laws of the state of Oklahoma and the rules and regulations off the State Board of Agriculture.

The defendant further alleges that tbe plaintiff, at tbe time alleged in bis petition, placed a large number of bogs in tbe public stock yards and railroad pens of t-bei defendant for tbe purpose of shipping tbe same for immediate slaughter, and that the defendant furnished cars adequate for tbe transportation of such hogs; that without tbe knowledge off defendant at tbe time same was done, the plaintiff did nor ship all of said bogs that were placed in said pens, but returned two or more of them to bis feeding pens; that tbe returning of said bogs to said feeding pan was a transportation of tbe same within the stare of Oklahoma^ and was done by the plaintiff in violation of the laws of tbe state of Oklahoma and off section 1, rule 9, of the rules and regulations of tbe State Board of Agriculture of the state of Oklahoma. Plaintiff’s reply to de. aidant’s answer was by way off general denial. The cause was tried befcffe a jury, and resulted in a verdict for the plaintiff in tbe sum sued for. Defendant’s motion for a new trial was overruled -and exception reserved. Judgment was entered for tbe plaintiff in accordance with tbe verdict of tbe jury, and tbe defendant has appealed to tbis court.

The first preposition presented by counsel for defendant is that tbe petition of tbe plaintiff does not state a cause of action, and, further, that' if it should be held tbac the petition does state a cause of action, there is not sufficient competent evidence disclosed by tbe record to support tbe allegations of cbe petition.

No authorities are cited by defendant in support of tbe proposition that plaintiff’s petition did not state a causa of action.

A petition charging that cbe defendant carrier, a railroad company, carelessly and negligently permitted its stock pens to become foul and filthy, and thaii they were infected with tbe disease known as bog cholera, and that prior to tbe time of tbe matters complained of bogs bad died in tbe railroad company’s -peng of cholera, and that at tbe time plaintiff delivered bis bogs to the carrier’s pens for shipment plaintiff was not aware- of tbe fact that said stock pens were so infected and bad no notice of such fact, and that a large number off plaintiff’s bogs became infected with cholera and died as a result thereof, is sufficiently definite, and a demurrer to such petition was properly overruled.

On tbe question of tbe sufficiency of tbe evidence to support the verdict, a more serious question arises and tbe following facts disclosed by the record may be considered: The plaintiff, Richardson, had been engaged for many ,^ears in the business of buying and selling hogs. On October 6 or 7, 1922, the plaintiff ordered from the agent of the defendant carrier a stc¡ck ear for the purpose of shipping his hcgs io San Francisco. Cal. The plaintiff testified that he sent ro the railway company’s stock pens a sufficient1 number of hogs to fill a 40-foot car which had been engaged fc'r that purpose. It appears that a smaller car was furnished than the one promised, and that two hogs, weighing some 200 pounds each, were le.t in the pen. There is some little conflict in the evidence as to why all of the hog's in question were ndt loaded on the car, but the admitted fact is that these twd hogs were not loaded on the car and were left in the carrier's pen, and after remaining there a short tíme the plaintiff was required by the agent of the defendant company to take them back to his own feed yard.

It further appears that on dr about the 21st day of October, 1922, rhe plaintiff shipped another car of hogs over the defendant's line to Oklahoma CPy. When this carload of hogs arrived in Oklahoma City, some 25 of them were dead and many others died in the yard after they had baen taken out of the car. The witness, Mr. Yottz, a member of the firm at Oklahoma Oity that purchased this carload elf hogs from the plain tiff, testified that he bad had 28 years’ experience in handling hogs, and that as a result of his experience it was his opinion that these particular hogs died' of cholera.

There was no evidence that any of the hogs that were shipped to California died of cholera, or of any other disease. The evidence on rhe part of the plaintiff further shows, that after the two hogs bad lmn taken from the defendant's stclek pens and placed in the plaintiff’s own feed yards with his other hogs, a disease soon thereafter appeared* and «. large number of his hogs d,:ed of hog cholera.

The evidence further disclosed, on the part of rhe pilaintiff, that the condition of the defendant company’s stock pens had been for a long time; subject to protest and complaint on the part of the officials of the city c<£ Mangum, on account of the unsanitary condition of the carrier’s pens.

The amended answer of the defendanc sets up. not only the contributory negligence of the plaintiff, but the violation by the plaintiff of the laws of the state and the published miles and insrructictns of the State Board of Agriculture.

It is made the duty of the railway corporations doing business in this state to disinrect the shipping pens and cars ussd by them in transporting live stock in or through this state, in such manner and at such times amt places as the Board of Agriculture, or one c!f its inspectors, may order and designate. Section 3686, O. S. 1921,

Section 3630, C. S. 1921, provides that the records, files, and hooks of the Board of Agriculture of this state shall be receivable as evidence, and the rules and regulations and orders of said board, when published, shall be deemed and held to be public notice, and shall have the force and effect of law and be judicially noticed and considerad as such, where such rules, orders, and regulations are of general application, etc.

One of the rules promulgated by the Scare Board of Agriculture, to wit, section 1 of rule 9, is incorporated in the record, and provides that all public stockyards and railroad pens, loading pens and chutes in this and other states, except such as are maintained especially for healthy holgs under supervision o.' the United Stares Bureau of Animal Industry, or the live stock inspector official of the state in which such yards are located, shall be considered infectious, and hogs which have in amy manner coime in contact with such yards, pens, and leading chutes shall be considered exposed, and shall not in any manner, be moved or transported into or within the state except to rncognizeil slaughtering centers fdr purposes of immediate slaughter. ■

As an exception to this rule it is provided that hogs may be shipped, transported, or otherwise moved, into or within the scale of Oklahoma from public stdekyards where inspection is maintained under the supervision of the Bureau of Animal Industry or ¿he Oklahoma State Board of Agriculture, for purposes other than immediate slaughter in conformity with provisions contained in the B. A. I. order No. 245 and amendments thereto, which provide that said hogs shall be inoculated with cholera serum, so as to render them immune to cholera and be treated by a competent veterinarian under the supervision effi-the Bureau of Animal Industry.

Dr. Robnett, State veterinarian for ten years under the Board1 of Agriculture of the state of Oklahoma, identified the live stock rules and regulations of the state of Oklahoma .and secticin 9, supra, together with exceptions thereto, as heretofore referred to, and also testified that the public stock yards and pens df the railroads at the place involved herein were not maintained under ■the supervision of the Bureau oil Animal Industry of the United 'States or of the State Board of Agriculture. Two local veterinarians, Dr, Holward and Dr. Hughes, who testified oin behalf of the plaintiff, both of whom had worked under the State Veterinarian, corroborated Dr. Robnett’s testimony. This testimony was ndwhere disputed, and it was admitted toy the plaintiff that no precautions were taken to disinfect or taolait the two hogs returned from the carrier’s pens on October 6, 1922, but that the same were returned to the feed yard of the .plaintiff where there was a large number cSf hogs, and that tha two hogs returned were kept with plaintiff’s other hogs, and fed and watered in the same pen. It was the theory of the plaintiff that the two hog® that he returned on the 6th or 7th day of October, 1922, to his own feed yard, had contracted the disease known as hog cholera while in the defendant's stock pens, and communicated the same disease to his remaining hc'gs.

The evidence shows that the plaintiff had for .many years purchased hogs from various sources in the part of the country where he resided for the purpose of feeding and shipping the same, and that between the 6th and 7th day of October, when he returned the two hogs to his feed yard, and the 22nd day of October, folio-wing, when he made his second shipment of -hogs, he had purchased from various persdns other hogs and placed them in his feed yard for the purpose of feeding and shipping the same; and while it is true that a. number of persons who sold these hogs to the plaintiff testified that their hogs ware healthy when they sold them to the plaintiff,' it Is also' true that there 'is a total want of competent evidence to support the -allegation of plaintiff’s petition that there wais any hog cholera at the carrier’s -pens.

Dr. Hughes and Dr. Howard, witnesses for the plaintiff, testified that there had ndt been any test made to ascertain whether or not the pens of the railroad company were infected with cholera germs, aond all the expert witnesses testified that unsanitary conditions had nothing to- do with cholera infection, and that the infection could not originate because of filthy or unsanitary conditions.

The plaintiff lost a number of hogs and they may have died from ho-g cholera, but the evidence disclosed by the record is, we think, clearly insufficient to connect the railway company with the infection off plaintiff's hogs.

Furthermore, under ithe -published rules and regulations -of the Board of Agriculture and the orders of said board, public stockyards, such as the yard in questictn, are considered infectious and exposed, and hogs which in any manner come in contact with such yards, pens, and loading chutes, should not be removed within or into the state except to recolgnized centers for tne purpose of immediate slaughter. The plaintiff was clearly chargeable with notice of the l-ules and regulations and orders of the ¡átate Board of Agriculture, as provided by section 3630, supra, yet, in violation off the law he removed the two hogs from the carrier’s pens without having them disinfected, and thereby upon his own theory hds other hogs became infected with eho-lera.

It is further -contended by the de'endant that the court erred an various instructions given to the jury, exceptions to which were reserved. In paragraph six of the general instructions the jury was instructed that it was the duty of the railroad company to- disinfect the pens and cars used -by 'them at such times and places as the Board of Agriculture or one of its inspectors may order, and that a failure to comply with the order of the Board of Agriculture would constitute negligence.

AVe are unable to discover any evidence that tends to show that the defendant had failed to disinfect its shipping pens at any time when ordered to do so- by the Board of Agriculture or by one of its inspectors. There is no evidence that any inspectors of the Board of Agriculture ever requested the defendant to disinfect its pens, exc-e-pt the testimony of one of the defendant’s em-plotyes, who stated that at- -one time such instructions werd given and that the defendant immediately complied with such directions. This testimony ia nowhere disputed, and the evidence nowhere -shc&ws that the defendant Violated any of the orders of the Board of Agrd-culture in this respect.

Plaintiff’s requested instruction No. 8. which was given by court, is as follows:

“Gentlemen of the jury, you are likewise instructed that the fact that the plaintiff was charged with knowledge that the- pens in question were considered infectious under section 1, rule 9, of the State Board of Agriculture does not of itself 'constitute the actual knclwledge of infection referred to and required by the count’s instructions in determining the question >ais to whether or not the plaintiff w-as guilty of contributory negligence in removing his hogs from said stock pens to -his pen, but that such knowledge on the' part of thei plaintiff must be an actual knowledge arising from the facts and circumstances or proof offered in the case, and yon cannot impute actual knowledge to' the plaintiff merely because the plaintiff was charged with 'notice under the provisions of said order.

The court, in its general instructidns, advised the jury that the plaintiff was charged with full knowledge of the State Board of Agriculture declaring loading pens and •chutes of the defendant company to be infected.

This instruction No. 8 was inconsistent wiith the general instructidns given, and was, we think, clearly erroneous, and prejudicial to' the rights of de.endant.

We have carefully examined the entire record of the instant case, and from such examination we are forced to the conclusion that the evidence adduced on the trial of the cause was clearly insufficient to support the verdict of the jury and the judgment rendered thereon.

We think the case should be reversed and remanded, with directions to g'ive the defendant a new trial.

By the Court: It is so ordered.

Note. — See under (1)) 29 Cyc. p. 525. (2) 10 C. J. p. 889 § 600; anno. 26 L. R. A. (N. S.) 712; 4 R. C. L. p. 976.  