TABLE OF STATUTES

CITED IN OPINIONS.

(A.) STATUTES OF THE UNITED STATES.

260 1898, July 1, § 60d, 30 Stat. 544
247, 250-253, 255, 258, 259, 264
§ 67, 30 Stat. 544.

(B.) STATUTES OF THE STATES AND TERRITORIES.

CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1907.

EMPIRE STATE CATTLE COMPANY v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY.

MINNESOTA AND DAKOTA CATTLE COMPANY v. SAME.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

Nos. 178, 179. Argued March 13, 16, 1908.-Decided May 4, 1908.

The fact that each party asks for a peremptory instruction to find in his favor does not submit the issues of fact to the court so as to deprive either party of the right to ask other instructions and to except to the refusal to give them, or to deprive him of the right to have questions of fact submitted to the jury where the evidence on the issues joined is conflicting or divergent inferences may be drawn therefrom. Beuttell v. Magone, 157 U. S. 154, distinguished.

Although a peremptory instruction of the trial court cannot be sustained on the ground that both parties having asked a peremptory instruction the case was taken from the jury notwithstanding special instructions had been asked by the defeated party, the verdict will be sustained if the evidence was of such a conclusive character that it would have been the duty of the court to set aside the verdict had it been for the other party. The Kansas City flood of 1903 was so unexpected and of such an unprecedented character that a railroad company was not, under the circumstances of this case, chargeable with negligence in sending cattle trains via Kansas City or for failing to move the cattle from the stock yards before the climax of the flood.

The duty that may rest on a carrier under normal conditions to transport merchandise by a particular, and the most advantageous, route is re(1)

VOL. CCX-1

Argument for Petitioners.

210 U. S.

strained and limited by the right of the carrier, in case of necessity, to resort to such other reasonable direct route as may be available under the existing conditions to carry the freight to its destination, and if such necessity exists, in the absence of negligence in selecting the changed route, the carrier is not responsible for damages resulting from the change even if such change may be, in law, a concurring and proximate cause of such damages.

147 Fed. Rep. 457.

THE facts are stated in the opinion.

Mr. James S. Botsford, with whom Mr. Buckner F. Deatherage, Mr. Odus G. Young and Mr. R. E. Ball were on the brief, for petitioners:

The court should have submitted the question of negligence to the jury, it being the settled law of the Federal appellate courts that it is the province of the jury to determine that question. Railroad Co. v. Stout, 17 Wall. 657; Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, 275; Marande v. R. R. Co., 184 U. S. 173.

The question of proximate cause was also a question for the jury, and should have been submitted to them. Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469; Webb v. Rome, Watertown & Ogdensburg R. R. Co., 49 N. Y. 420; Pennsylvania R. R. Co. v. Hope, 80 Pa. St. 373; Kellogg v. The Chicago & Northwestern R. R. Co., 26 Wisconsin, 224; Perley v. The Eastern R. R. Co., 98 Massachusetts, 414; Higgins v. Dewey, 107 Massachusetts, 404; Tent v. The Toledo, Peoria & Warsaw R. R. Co., 49 Illinois, 349.

Contributory negligence of the carrier renders it liable, notwithstanding the act of God relied on by it as the cause. Sweezey v. Philadelphia, 64 Pa. St. 106; Helbling v. Cemetery Co., 201 Pa. St. 171; Morrison v. Davis, 20 Pa. St. 176; Williams v. Grant, 1 Connecticut, 487; Wallace v. Clayton, 42 Georgia, 443; Railroad Co. v. White, 88 Georgia, 805; Merritt v. Earle, 29 N. Y. 115, 116f; Michaels v. Railroad Co., 30 N. Y. 564, 570; Bibb Broom Corn Co. v. A., T. & S. F. Ry. Co., 102 N. W. Rep. (Minn.) 709; Railroad Co. v. Curtiss, 80 Illinois, 324; Wald v.

210 U. S.

Argument for Petitioners.

Railroad Co., 162 Illinois, 545; Blodgett v. Abbott, 72 Wisconsin, 516; Nelson v. Railway Co., 72 Pac. Rep. (Mont.) 643, 651; Steamboat Co. v. Tiers, 24 N. J. L. 697; Railroad Co. v. David, 6 Heisk, 261; McGraw v. Railroad Co., 18 W. Va. 361; Smith v. Railway Co., 91 Alabama, 455; Coosa Steamboat Co. v. Barclay, 30 Alabama, 12, 127; Nugent v. Smith, 1 C. P. Div. 19, 423; 1 Am. & Eng. Enc. of Law (2d ed.), 595; 5 Am. & Eng. Enc. of Law (2d ed.), 234; Hutchinson on Carriers, §§ 181, 187, 188; 6 Enc. of L. & P., 377-384; Strouss v. Railway Co., 17 Fed. Rep. 209, 212; Caldwell v. Southern Exp. Co., 4 Fed. Cas. 1036, No. 2,303; Thompkins v. Duchess of Ulster, 24 Fed. Cas. 32, No. 14,087a; Southern Pac. Co. v. Schoer, 52 C. C. A. 269, 274; Newport News Co. v. United States, 9 C. C. A. 579; Clark v. Barnwell, 12 How. 272, 280; Holladay v. Kennard, 12 Wall. 254; Gleason v. Railroad Co., 140 U. S. 433; The Majestic, 166 U. S. 376, 386; Gratiot W. H. Co. v. Railway Co., 102 S. W. Rep.

11.

By the deviation of the cattle from Strong City they were taken from a safe place into what was then known to be a hazardous place. If the deviation from Strong City to Kansas City was made without the consent of the shippers, then, according to all the authorities, it was wrongful, and the company is liable on that ground alone. Crosby v. Fitch, 12 Connecticut, 410, 420, 423; Railroad Co. v. Beck, 125 Pa. St. 620; Phillips v. Bingham, 26 Georgia, 617; Railroad Co. v. Cole, 68 Georgia, 623; Cassilay v. Young, 4 B. Mon. 265; Sager v. Railroad Co., 31 Maine, 228, 238; Railroad Co. v. Washburn, 22 Ohio St. 324; Express Co. v. Smith, 33 O. St. 511; Brown Co. v. Railroad Co., 63 Minnesota, 546; Hendricks v. Steamship Co., 18 La. Ann. 353; Hastings v. Pepper, 11 Pick. 41; Proctor v. Railroad Co., 105 Massachusetts, 512; Railway Co. v. Allison, 59 Texas, 193; Johnson v. Railway Co., 33 N. Y. 610; Goodrich v. Thompson, 44 N. Y. 324; Maghee v. Railroad Co., 45 N. Y. 514; Keeney v. Railway Co., 47 N. Y. 525; Robertson v. Nat. S. S. Co., 14 N. Y. Supp. 313; Seavey Co. v. Union Trans. Co., 106 Wisconsin, 394; Railway Co. v. Brichetto, 72 Mississippi, 891; Railroad Co.