The opinion
Evans, J.
(dissenting). — I am not able to concur in the majority opinion. The only criticism upon it which I care to note is that neither its main discussion nor its conclusion is warranted by the state of the pleadings in this case. The action was brought by plaintiff to recover damages for loss of stock shipped, over its railway from *189 St. Paul to Lansing Iowa. Twelve of tlie cattle died in the course of transportation.
The allegations of the petition are that the plaintiff delivered to the defendant for shipment from St. Paul to Lansing, Iowa, sixty-two head of cattle, and that the defendant received the same from plaintiff for such transportation “and assumed to the-plaintiff the obligation and duties of a common carrier of said cattle;” “that said cattle were delivered to defendant properly loaded and in good condition;” “that the defendant caused the cattle to be transported a short distance and then left the ear upon a side track in an unsheltered and exposed position for several hours, until the cattle became badly frozen; that the exposure of the cattle to the severe cold was a violation of its contract and was negligent and unauthorized conduct on its part, and was done against the protest and demands of the plaintiff that the stock be forwarded to its destination or unloaded and placed in proper shelter; that by reason of the negligence and wrongful conduct of the defendant and its failure to comply with its contract and its obligation as a common carrier, the said stock so intrusted to defendant was damaged by the death of twelve head of said cattle on account of said freezing and exposure to cold.” Later plaintiff filed an amendment which alleges that the defendant “failed to exercise the diligence required by law to protect plaintiff’s property from injury and destruction by freezing, exposure, and all other causes by which plaintiff’s stock was injured resulting from conditions which, in the exercise of the care required of a common carrier, might have been averted, and which, in the exercise of due care, might have been known and anticipated, and which neglect and delay in transporting occasioned the injury of plaintiff’s property of every character and by whatever cause; that the agents and servants of defendant during the entire time the plaintiff’s property was in its possession and in its control had actual knowledge and notice from the plaintiff *190 as to its condition and as to the injuries being inflicted upon it, and to which it was liable, and were repeatedly demanded to take steps to protect said property and relieve it from the danger of injuries which resulted in the plaintiff’s loss and damage by failing and neglecting so to do.”
The answer of the defendant contains certain specific and qualified denials. It denies that it transported the cattle a short distance and then left the car upon the side track. It alleges that the cattle were forwarded by the first regular train leaving Newport and carried forward without unnecessary delay. “It denies that the conditions at the time were such as to render it necessary to unload said cattle or to treat them otherwise than they were treated at the time, and denies that said cattle were frozen or injuriously affected by the weather to any extent during the time they stayed upon said side track, or at any other time while they were within its possession; and denies that plaintiff has been damaged by any fault or negligence, or breach of duty on its part in the sum claimed or in any other or different sum whatever.” The foregoing comprises the entire answer. It contains no general denial nor affirmative defense. All material allegations of the petition which are not thus denied may be deemed as conceded. It will be noted that the ansiver bases no claims of exception or exemption from its ordinary common-law liability as a carrier upon the fact that the plaintiff accompanied the shipment. There is no reference to such fact either in the petition or in the answer. The first issue made by the answer is the denial that the defendant was responsible for side-tracking the car at Newport. Defendant abandoned this issue in effect on the trial, and we need not further consider it. The other issues made by the answer are: (1) It denies that the conditions were such as to render it necessary to unload the cattle or to treat them otherwise than as they were treated. (2) It denies that said cattle were frozen or injuriously affected to any extent by the *191 weather at any time while they were in defendant’s possession. (3)' It denies that plaintiff has been damaged by any fault or breach of duty on its part.
Plaintiff introduced evidence in chief that the cattle were in good condition when loaded in the car; that the loading was completed by seven o’clock in the evening, when the car was taken by a switch engine to Newport and placed upon a side track there and allowed to remain there for four hours before being started on its journey soiith; that he accompanied the car; that the night was clear and cold and grew colder as it advanced. That the country west and north of Newport is open and flat and that a hard wind was blowing from the northwest; that the cattle were severely chilled during the long wait on the side track; that he tried in vain to get assistance in giving them protection; that he applied to the telegraph operator who was the only person at the station, and who failed to take any steps to alleviate the condition; that live stock loaded in a car suffer more severely from wind and cold when the car is at a standstill than when the car is moving; that as the train proceeded south, moderated temperature was experienced. There was also evidence descriptive of the condition of the cattle when delivered at the place of destination. Several were dead in the car and others died immediately after being unloaded, making twelve in all. Others were in bad condition and were barely saved from death.
The defendant offered in evidence a written contract under -which the shipment was made and in such contract this provision, among others, appears: /‘That the company shall not be liable for injury arising from delay in transportation; that the owner in charge of stock shall bear all expense of feeding and watering during transportation.” Evidence was also introduced by defendant respecting the weather conditions at the time, and the conduct of the train from Newport south, and the condition of the cattle when delivered at Lansing.
*192 It will be observed that, in so far as it was incumbent upon the plaintiff as a matter of law to prove that the alleged injury to his cattle was not caused by any fault of his, it is sufficiently covered by the undenied allegations of his petition. This of itself was sufficient reason why the instructions of the trial court need not define the extent to which the burden of proof lay upon the plaintiff, as to care on his part. Regardless, therefore, of the abstract rule in such cases, it is clear that under the pleadings and the undisputed evidence in this case, the burden of proof on the disputed questions was properly laid upon the defendant. It may be conceded that it is not an accurate statement of the law in the abstract to charge the defendant with the “highest degree of care possible to the situation,” although this was substantially the language used in the Kinnick case. In the state of the pleadings and under the evidence, it was clearly nonprejudicial to the defendant in this case. It was either conceded or undisputed that the plaintiff delivered to the defendant the cattle as a common carrier in good condition, and that at least twelve of them died while in its possession. It was therefore prima facie liable.
The only evidence offered by the defendant as bearing upon the cause of such loss, was evidence tending to show that the cattle could not have died as a result of severe weather, and that they might have died as a result of overloading the car. In no other sense did it attempt to explain the cause of the loss. There was no evidence tending to show that it resulted from the natural propensities of the animals, or from some internal condition already existing. On the contrary, the allegation that the cattle were in good condition was undenied. The distinct issue made by the defendant in its answer was that the conditions were not such as to render it necessary to unload the cattle or to treat them otherwise than as they were treated. The jury must necessarily have found against the defendant *193 on that issue as made. Tlie claim in the evidence tliat the ear was overloaded did not aid the defendant upon that issue. If any evidence had tended to show any other cause for the death of these cattle ‘except that ascribed by the plaintiff, and if the evidence tended to show that in the presence of such other cause the defendant had exercised a reasonable degree of care under all the circumstances, a different situation would be presented.
.As the case stands on the pleadings and the evidence, the plaintiff has established a case of liability on the part of the defendant as a common carrier, every element of which is supported by undisputed evidence, or by undenied allegations of his petition.
I reach the conclusion, therefore, that the judgment below ought to be affirmed.
Weaver, J., joins in the dissent.