#### William H. McElwain, appellee, v. Union Pacific Railroad Company, appellant.

Filed July 10, 1917.

No. 19231.

1. Carriers: Transportation op Live Stock: Claim for Damages: Notice. Where the bill of lading provides that, as a condition precedent *to the*right to *recover*“damages for loss of or injury to” live stock, the shipper shall give notice in writing of his claim therefor, notice is not required where the claim is solely for damages sustained by the loss of a favorable market and for shrinkage in weight and expense of feeding at destination while awaiting the next market;. such damages being caused by reason of delay in transportation.

2. -: -; Delay: Burden of Proof. Where there is proof that an unreasonable time'was consumed in transporting the shipment, the burden is on the carrier to prove that the delay was not caused by its negligence, though the owner of the live stock accompanied the shipment. *Gleve v. Chicago, B. & Q. R. Co.,*77 Neb. 166, distinguished.

3. Evidence: Opinion op Witness: Shrinkage op Live Stock. Opinion testimony of qualified witnesses that cattle held at destination two days before selling will probably shrink in weight 3 per cent, may be admissible to prove a claim for shrinkage after arrival, where the weight of the cattle on arrival at destination and before watering and feeding and their selling weight tend to show that the cattle did not “fill” the usual amount. *Underwood v. Chicago <& N.*W. *R. Co.,*100 Neb. 275, distinguished.

Appeal from the district court for Merrick county: Frederick W. Button, Judge.

*Affirmed.*

*Edson*Rich, *A. G. Ellich*and *Martin &*Boches, for appellant.

*Elmer E, Ross*and *Prince & Prince, contra.*

Letton, J.

Plaintiff recovered judgment for damages caused by delay in the transportation of live stock, and defendant appeals.

Defendant contends that the' instructions ignore the following provision of the bill of lading: “The said ship*485per further agrees that, as a condition precedent to his right to recover any damages for loss of, or injury to, any of said stock, he will give notice in writing of his claim therefor to some officer of said carriers, or to their nearest station agent, before said stock has been removed from said place of destination, and before such stock has been mingled with other stock, and present a formal statement of his claim duly verified to said carriers within 60 days ■ thereafter.”

Plaintiff concedes the validity of this provision, but contends that it is not applicable to claims for damages not accruing during transportation. In the petition it is alleged that, if there had been no delay in the transportation, the cattle would have arrived in Chicago in time for the market of Monday, December 2; that owing to the negligence of defendant they arrived there too late for the Monday market; that there was no satisfactory market Tuesday for the class of cattle which plaintiff had shipped, and the cattle were sold Wednesday for less than plaintiff would have received had they arrived Monday. He claims damages for the loss of the Monday market, for shrinkage in the cattle while in the stock-yards from Monday afternoon until Wednesday, and for feeding expense for the two days.

Provisions in a bill of lading, in cases where there is a reasonable doubt as to their meaning, are to be construed most strongly against the carrier. 10 C. J. 181,194. Was plaintiff required by the provisions of the bill of lading to give notice of his claim? The following statement of the law is pertinent to this inquiry:

> “If because of wrongful delay the shipment sustains physical injury, and in consequence a depreciation in value, a provision in the contract of shipment requiring notice of claim for damages for loss or injury to the shipment is applicable. * * * On the other hand, it is very generally held that a stimulation for notice of this character applies only to a loss of, or physical injury to, a shipment of dead freight, or to injury to a shipment of *486live stock caused by delay and consequent depreciation in value. In other words, where the shipper suffers special damages because of wrongful delay, no compliance with the stipulation is necessary to entitle him to recover for special damages, and the reason is that the notice would be useless in determining the amount of such loss. In conformity with this principle, it has uniformly been held that a stipulation that notice of damages should be a condition precedent to recovery for any injury to the shipment during transportation has no application to damages caused by the loss of market, to loss resulting' from a decline in the market value of the shipment, or to the expense of feeding stock, resulting from delay in transportation. And no notice is necessary to authorize the recovery of damages from shrinkage resulting from the holding of the cattle after transportation was completed, due to the loss of market. * * * Nevertheless, it has been held that, where the provision requiring notice is not confined to loss of, or injury to, live stock covered by the contract, but expressly includes damages for delay, it must be construed as including a loss sustained by a decline in the market, and that a provision in a bill of lading to the effect that *claims*for loss, *damage,*or delay *must*be made in order to render the carrier liable was not limited to claims for damages to the goods shipped.” 10 C. J. 334.

Plaintiff’s claim was not a claim for “damages for loss of, or injury to,” the stock, and notice was not required by the bill of lading. *Gault v. Atchison, T. & S. F. R. Co.,*92 Kan. 464; *Elliott v. Chicago, M. & St. P. R. Co.,*38 S. Dak. 371.

It is also contended that instructions relating to the burden of proof are erroneous. After instructing that, in order to recover, plaintiff must prove by .a perponderance of the evidence that “an unreasonable delay in the transportation of said cattle occurred on account of the negligence and carelessness of defendant or connecting carriers, and without fault of the plaintiff,” the court also instructed that, “when the evidence discloses that an un*487reasonable lehgth oí time bas been consumed in the transportation of live stock, and the carrier seeks to justify the same, then as to such justification the burden of proof devolves upon it to show by a preponderance of the evidence that said delay in transportation was not caused by its own carelessness or negligence.” Defendant argues that, since the owner accompanied the shipment, the burden is on him to prove that the loss complained of was occasioned by .the carrier’s negligence. *Cleve v. Chicago, B. & Q. R. Co.,*77 Neb. 166. In the case cited it was held that, “where by contract the shipper accompanies his live stock with tenders or caretakers, no presumption of negligence on the part of the carrier arises merely- from the proof of the fact that loss or injury has attended the shipment, but the burden is on the shipper to show that the loss, if any, sustained was occasioned by the negligence of the carrier,” and a judgment against the carrier was reversed, since there was no competent evidence tending to show that more time was consumed in transporting the shipment than was reasonably necessary. The instruction assailed does not conflict with the rule announced in the foregoing case. Where the evidence shows that an unreasonable time was consumed in transporting the shipment, the carrier will be liable for resulting damages, whether the shipper did or did not accompany the shipment, unless it is shown that the delay was within the exceptions qualifying the carrier’s general liability, the cause of the delay being a matter peculiarly within the knowledge of the carrier.

It is contended that the court erred in admitting opinion evidence to prove alleged shrinkage in weight of the cattle while being held at the stock-yards in Chicago. The aggregate weight of the cattle when weighed on the railroad scales on their arrival at Chicago and before watering was 255,200 pounds. Their selling weight Wednesday morning was 256,410 pounds. Witnesses for plaintiff, experienced in the live stock business, testified that the cattle ought to “fill” 3 to 4 per cent, when watered and sold on their arrival. A witness, called by the defendant, who *488had been engaged in the live stock business in Chicago for nearly thirty years, on cross-examination and without objection testified to the same effect. There was a conflict in the evidence as to whether cattle held over from Monday to Wednesday under circumstances such as were in evidence would shrink in weight, but the contention of plaintiff is supported by sufficient competent evidence that such cattle would shrink about 3 per cent, in weight. In other words, while the actual weight of the cattle on the cars at destination and their weight when sold two days later might be the same, if properly filled and taken care of, the cattle should weigh 3 per cent, more than when on the cars, the weight when sold in this case being 6,446 pounds less than it would have been if the cattle had filled 3 per cent, on arrival. There is no proof as to the amount of feed furnished during this delay, and it is not contended it was insufficient.

Defendant, cites *Underwood v. Chicago &*N. *W. R. Co.,*400 Neb. 275, in which it was stated in the syllabus: “The fact that there was a shrinkage of weight must be proved by competent evidence, and cannot be established by mere opinion evidence.” This was correct as applied to the facts in that case, but is not correct as a general rule. In that case the weight of the cattle at the point of origin and destination was the same. The selling weight showed that the cattle had filled a little over 65 pounds a head on an average, which met the requirements indicated bv the testimony on behalf of plaintiff. Under such evidence, opinion evidence that cattle when held over one day would shrink 30 pounds a head was insufficient to support a finding of such a shrinkage, since the other evidence conclusively showed that there had been no shrinkage. In the present case, since the cattle at destination did not “fill” to the usual amount, it was proper to show by stockmen that cattle being held for two days at destination would probably shrink 3 per cent.

The judgment of the district court is

Affirmed.

*489Sedgwick, J., not sitting.

Hamer, J.,

dissenting.

I am unable to agree with the views expressed in the majority opinion. In the first paragraph of the syllabus it is held: “Where the bill of lading provides that as a condition precedent to the right to recover ‘damages 'for loss of or injury to’ live stock, the shipper shall give notice in writing of his claim therefor, notice is not required where the-claim is solely for damages sustained by the loss of a favorable market and for shrinkage in weight and expense of feeding at' destination while awaiting the next market, such damages being caused by reason of delay in transportation.” The views of the court as -expressed in the body of the opinion supports the syllabus. The provision in the bill of lading reads: “The said shipper further agrees that, as a condition precedent to his right to recover any damages for loss of, or injury to, any of said stock, he will give notice in writing of his claim therefor to some officer of said carriers, or to their nearest station agent, before said stock has been removed from said place of destination, and before such stock has been mingled with other stock, and present a formal statement of his claim duly verified to said carriers within 60 days thereafter.” It might be all right to hold that notice is not required where the claim is solely for damages sustained by the loss of a favorable market and expense of feeding at the destination, provided the same are caused by an unnecessary delay in transportation. The weight of the cattle immediately upon their arrival at their destination and before eating, drinking and filling to their usual condition, as nearly as may be, would not be their proper weight. The opinion testimony concerning what the cattle would shrink in two days further complicates the matter. There is no proper starting point shown by the evidence in the case. The testimony of the witnesses as to what might be the shrinkage of the cattle in two days gets noivhere. It is a projected view having no relation to the case and no *490connection with it. Undoubtedly there was shrinkage during the transportation of the cattle and it was that shrinkage to which the bill of lading refers, but the defendant company could not properly be held liable for that; and that is mixed with the estimated shrinkage of two days, as related by the opinion witnesses, and both kinds of shrinkage are together, that on the trip and that after the cattle arrived at the end of the trip, and therefore they are inseparable, and each by itself is unascertainable. This must have been prejudicial to the interests of the defendant at the time of the trial.

It is without doubt dangerous to the due administration of justice to make claims for damages because of other things than injury to the live stock shipped and then to consider the whole together. Besides no satisfactory reason is offered for not giving the notice. When the cattle arrived at their destination the shrinkage of the trip had occurred and it was then ready to be investigated. The notice should then have been'given before the accumulation of further acts to obscure the view of the subject. The weight of the cattle immediately upon their arrival at Chicago and before being fed or watered was 255,200 pounds, and when sold on Wednesday morning afterwards they weighed 256,410 pounds. The opinion witnesses were brought in to show that the weight of the cattle when sold was 6,465 pounds less than'it would have been if the cattle had been properly cared for and had been properly filled on arrival. The problem presented was incapable of exact demonstration, and no one may know that this testimony enabled the court to reach a correct result. It is conceded in the majority opinion that the case cited by the defendant railroad company, *Underwood v. Chicago & N. W. R. Co.,*100 Neb. 275, was right in that case “but is not strictly correct as a general rule.” I think it is preferable to look for a *general rule.*In that case the “fill” is claimed to have amounted on the average to 65 pounds to each steer, and in that case the weight of the cattle at the destination and “point of origin” was the *491same, and when tbe court saw there had been no shrinkage the opinion evidence that the cattle when held over one day wonld shrink 30 pounds to the head was held insufficient to support a finding of shrinkage in the face of competent evidence that there had been no shrinkage.