
    CHARLES HEYMAN, et al., Appellants, v. THE PHILADELPHIA & READING R. R. COMPANY, Respondent.
    
      Common carrier—Live stock, responsibility for injuries to.
    
    In the case of the transportation of live stock, the shipper, to recover from the carrier for an injury thereto, must adduce evidence to show that the injury happened through want of suitable means of transportation, or of the exercise of the degree of care which the nature of the property required, or some neglect or omission of duty on the part of the carrier.
    In the case at bar, the only evidence being that a slat of the car in which plaintiffs’ horse was carried (which car was in good order and suitable for the purpose when loaded), became broken on the trip, which was repaired, and at the end of the trip was again found broken and the horse injured, one of his fore legs being broken, and that the car was allowed to stand for one or two hours after it was loaded, there being no evidence to show that the injury was caused either by the broken slat or the standing of the car, or that any act of defendant’s could have prevented the accident.
    
      Held, that the complaint was properly dismissed.
    Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided December 30, 1886.
    Appeal from a judgment entered upon a verdict directed by the court in favor of the defendant.
    The defendant was sued for negligence committed in its capacity of a common carrier, the complaint alleging in substance that the plaintiffs shipped a horse over defendant’s road at Reading, Pennsylvania, which defendant agreed to carry and deliver safely to plaintiffs at Jersey City, New Jersey, and that by reason of the defendant’s negligence one of said horse’s fore legs became broken, for which plaintiffs claimed damages in the sum of $350.
    
      Further facts appear in the opinion.
    
      Cardozo & Newcombe, and Leonard Bronner, for appellants.
    I. The appellate court will consider whether on any construction of the facts the jury would have been warranted in finding for the plaintiffs, and if so the nonsuit was error (Minor v. Mayor &c., 5 J. & S. 171; Stone v. Flower, 47 N. Y. 566 ; Royce v. Watrous, 7 Daly 87). The facts warranted such a construction as would have enabled the jury to properly award a verdict against the defendant. The testimony clearly shows it was a question of fact whether or not the slat in the car was properly repaired. The want of suitable vehicles in which to transport articles is neglect on the part of the carrier (Sayer v. Portsmouth R. R. Co., 31 Me., 229 ; Great Western Ins. Co. v. Hawkins, 18 Mich. 427). The fact that the carrier has done what is usual is not sufficient to exempt him from the charge of negligence. He must show that he has done what is necessary under all circumstances (Wing v. N. Y. & Erie R. R. Co., 1 Hilton 235 ; Reed v. Phil., Wilmington & Baltimore R. R. Co., 3 Houston [Del.] 176 ; Truax v. Same, Ib. 233). The liability of a railroad company engaged as a common carrier of animals is not limited to the careful and safe conveyance of the car containing them, and in the absence of a special agreement, the company is liable for any injury which can be prevented by foresight, vigilance and care arising from the conduct of the animals (Clark v. Rochester & Syracuse R. R. Co., 14 N. Y. 573 ; Mynard v. Syracuse & Binghampton R. R. Co., 71 Ib. 181). Whenever a railroad company receives cattle or live stock, such company assumes all the responsibility of a common carrier for a transportation, unless modified by a special contract (See cases above cited). It is the duty of a railroad company which undertakes to carry five animals for hire, to provide cars of sufficient strength to prevent the animals from breaking through the same, and they are responsible for a loss through their failure to do so, although the animals Avere unruly and vicious (Merritt v. Farley, 29 N. Y. 115; Smith v. New Haven & Northampton R. R. Co., 12 Allen [Mass.] 531; Mynard v. Syracuse & B. R. R. Co., supra). When the car arrived at Jersey City the identical slat which had been previously broken was found broken anew. No other slat was broken, and this circumstance raised a question of fact Avhether or not the defendant, when it repaired.the slat at Eeading, did it in so safe and secure a manner as to prevent the accident, especially in view of the testimony as to the manner in which the slat Avas repaired, and whether the railroad company had fulfilled the duty of providing sufficiently strong and secure cars (Clark v. Rochester & Syracuse R. R. Co., supra). Even where the injury was not the direct result of the defendant’s act solely, but the proximate cause was contributed to by the acts of the defendant, the defendant is liable (Macauley v. Mayor, 67 N. Y. 602 ; Payne v. Troy R. R. Co., 83 Ib. 572 ; Wolf v. Am. Ex. Co., 43 Mo. 421; Fero v. Buffalo & State Line R. R. Co., 22 N. Y. 209 [78 Am. Dec. 178]). Where a carrier receives a cask of wine, in good order, the burden is upon him of showing that a loss of its contents was occasioned by causes for which he is not responsible (Arend v. Liverpool Steamship Co., 6 Lans. 157; affi’d, 53 N. Y. 606).
    II. As there was evidence from which a jury might find in favor of the plaintiff, it is insisted that the case should not have been withdrawn from their consideration. It does not follow that because there is no contradictory testimony the court must take the question from the jury and determine it as one of law; on the contrary, if different results would be reached by different minds, the question must go to the jury (Wait v. Ins. Co., 13 Hun 371; Nicholson v. Connor, 8 Daly 212 ; 84 N. Y. 5). In an action to recover damages for alleged negligence, plaintiff is entitled to have the issue of negligence submitted to the jury when it depends upon conflicting evidence, or an inference to be drawn from circumstances in regard to which there is room for a difference of opinion among intelligent men (Payne v. Troy R. R. Co., 83 N. Y. 572 ; Hays v. Miller, 70 Ib. 112; Fitzpatrick v. N. Y. Cen. & Hud. R. R. R. Co., 21 Week. Dig. 169; 98 N. Y. 649). It was shown that when the cars are at rest cattle are uneasy, move about, hook and crowd each other, are disposed to lie down (if possible), and are thus liable to be trampled upon or otherwise injured more than when the cars are in motion ; and hence, if we eliminate from the case the question of fact whether the evidence as to the defective slat or the improper manner in which it was repaired established negligence, still there remained the question of fact whether the horses were improperly or unnecessarily detained at Reading, and if so, whether the injurious detention was the cause of, or resulted in, the damages complained of (Harris v. Northern R. R. Co., 20 N. Y. 232 ; Macauley v. Mayor, 67 Ib. 602; Merritt v. Earle, 29 Ib. 115).
    
      R. W. De Forest, attorney, and F. L. Hall, of counsel for respondent:
    I. This action cannot be sustained without proof that defendant was negligent (Losee v. Buchanan, 51 N. Y. 476 ; McPadden v. N. Y. Central R. R. Co., 44 Ib. 478).
    II. To warrant the submission of the case to a jury there must be, not a mere scintilla of evidence, but such that a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed (Commissioners, &c. v. Clark, 94 U. S. 284; Pleasant v. Fant, 22 Wall. [U. S.] 120 ; Baulec, Adm’r v. N. Y. & Harlem R. R. Co., 59 N. Y. 356). Where, upon the whole evidence, a verdict in favor of the plaintiff would have been set aside, as against evidence, it is the duty of the court to nonsuit (Nuendorf v. World Mutual Life Ins. Co., 69 N. Y. 389). The question should be, not whether the inferences can be differently drawn by different minds, but whether they can logically be drawn from the facts proved, in any other way than one way; and to say whether they can logically be drawn in any other than one way is the province of the court guided by its legal training (Smith Ex. v. N. Y. C. & H. R. R. Co., 19 Week. Dig. 230). The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred, the jurors have to say whether from those facts when submitted negligence ought to be inferred (Metropolitan Ry. Co. v. Jackson, L. R. 3 App. Cases 197).
    III. A judge will not be justified in leaving the case to the jury when the plaintiff’s evidence is equally consistent with the absence as with the existence of negligence in the defendant (Baulec Adm’r v. N. Y. & Harlem R. R. Co., supra ; Improvement Co. v. Munson, 14 Wall. [U. S.] 442 ; Parks v. Ross, 11 How. [U. S.] 373 ; Muller, Adm’x v. Second Ave. R. R. Co., 48 Super. Ct. 546 ; Claflin v. Meyer, 75 N. Y. 260).
    IV. The burden of maintaining the affirmative of the issue is upon the party alleging the fact which constitutes the issue (Lamb v. Camden & Amboy R. R. Co., 45 N. Y. 271; Heinemann v. Heard, 62 Ib. 455).
    V. A carrier of animals is not responsible for injuries to them caused by their fright, restiveness, or viciousness, no negligence on his part being shown (Evans v. Fitchburg R. R. Co., 111 Mass. 142 ; Indianapolis, &c. R. R. Co. v. Jurey, 8 Ill. App. 160 ; Cragin v. N. Y. C. R. R. Co., 51 N. Y. 16).
    VI. It may be claimed on behalf of the plaintiff that the evidence presented by himself and his witnesses, that the horses were quiet in the stable before shipping and did not seem unruly or vicious when taken from the car at destination, is sufficiently contradictory of defendant’s testimony to present a question of fact for the jury. This position, however, is not tenable for the reasons : 1st. .That such evidence is merely negative and fails before the direct and positive evidence to the contrary after plaintiff had placed them in the cars; and 2d. That, even if it were admitted that the horses in question were ordinarily quiet, the fact of the breaking of the car slat, and the consequent injury to one of their number, is more consistent with the theory of the unusual unruliness and kicking of the horses than of any negligent act of the defendant (See cases cited above).
   By the Court.—Ingraham, J.

The rule in relation to the liability of a common carrier in the transportation of live stock, is stated by Earle, Commissioner, in Cragin v. N. Y. Central R. R. Co. (51 N. Y. 63): “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 consequences of its own vitality. Animals may injure or destroy themselves or each other ; they may die from fright or from starvation because they refused to eat, or they may die from heat or cold. In all such cases the carrier is relieved from responsibility, if he can show that he has provided all suitable means of transportation, and exercised that degree of care which the nature of the property requires.”

It is not sufficient therefore, to make the defendant 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 showed that the car in which the horse was shipped was in good order and suitable for the purpose when the car was loaded; 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 defendant ; on the contrary it appeared that one of the horses in the car was Id 'king violently. That break was repaired as the witness stated in a proper manner, and at the end of the trip the 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 defendant 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 plaintiffs 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.

The fact that the car was allowed to stand for one or two hours after it was loaded is 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 the opinion that the verdict was properly directed for the defendant, and the judgment should be affirmed with costs.

Sedgwick, Ch. J., concurred.  