Brandom v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 07 December 1908
• Citation: 134 Mo. App. 89,114 S.W. 540
• Parties: BRANDOM et al. v. ATCHISON, T. & S. F. RY. CO.
• Court: Missouri Court of Appeals

114 S.W. 540

134 Mo. App. 89

BRANDOM et al. v. ATCHISON, T. & S. F. RY. CO.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

1. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK — FAILURE TO FURNISH CARS — EVIDENCE.

In an action against a railway for failure to provide within a reasonable time cars for plaintiff's shipment of live stock, the burden was on plaintiff to show that defendant owned and operated a railroad at the shipping point.

2. CARRIERS (§ 230) — CARRIAGE OF LIVE STOCK — FAILURE TO FURNISH CARS—QUESTIONS FOR JURY—OWNERSHIP.

In an action against a carrier for failure to furnish cars for plaintiff's shipment of live stock, if the ownership of the railroad is not disputed, meager evidence of ownership will suffice to carry that question to the jury; but if the fact is disputed, plaintiff must furnish

competent evidence of sufficient evidentiary strength to raise a debatable issue.

3. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK—OWNERSHIP OF ROAD—EVIDENCE.

In an action against the Santa Fé Railroad Company for failure to furnish cars for plaintiff's shipment of live stock from a point in Texas, folders of the Santa Fé System, showing affirmatively that the point was on the line of the Southern Kansas Railway Company, a distinct corporation, though a part of the Santa Fé System, did not tend to show ownership in the Santa Fé Company at such point.

4. EVIDENCE (§ 318) — HEARSAY—DOCUMENTARY EVIDENCE.

In an action against a railroad company for failure to furnish cars for plaintiff's shipment of live stock, in which the ownership of the road at the point of shipment was in issue, time-tables and atlases, not published by defendant, were not admissible without competent evidence of their authenticity.

5. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK—OWNERSHIP OF ROAD—EVIDENCE.

In an action for failure to furnish cars for plaintiff's shipment of live stock from a point in Texas, in which the ownership of the railroad at that point was in issue, evidence that a conductor on such road gave to a passenger at a point in Texas a receipt for fare purporting to be issued by defendant company was not alone sufficient to raise an inference of ownership in defendant.

6. CARRIERS (§ 230) — CARRIAGE OF LIVE STOCK—QUESTIONS FOR JURY.

In an action for failure to furnish cars for plaintiff's shipment of live stock, evidence held insufficient to carry to the jury the question of defendant's ownership of the road at the point of shipment.

Appeal from Circuit Court, Carroll County; J. P. Butler, Judge.

Action by T. M. Brandom and others against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Bruce Barnett, Lozier, Morris & Atwood, and Paul R. Stinson, for appellants. Thos. R. Morrow, James P. Gilmore, and Virgil Conkling, for respondent.

JOHNSON, J.

Plaintiffs, partners engaged in the cattle business, brought this suit against defendant, a common carrier, to recover damages alleged to have been sustained by them in consequence of the delay of defendant to provide cars for the shipment of 371 head of cattle from Higgins, Tex., to Kansas City, Mo. In the first count of the petition, the cause pleaded is the breach of a contract to furnish the cars on a certain day. In the second, a failure to perform the common-law duty to provide the cars within a reasonable time after they were ordered by plaintiff is alleged. In its answer, defendant denies that it operates a railroad into Higgins, Tex., and states that the carrier that received the shipment at that point, and whose duty it was to furnish the cars to plaintiffs, was a connecting but independent carrier. Further, it is alleged that defendant made every reasonable exertion to assist that carrier to procure the cars, and that the cars were provided within a reasonable time. It is denied that any agreement was made to furnish them at a specified time.

It appears from the evidence that in September, 1903, plaintiffs purchased 371 head of neat cattle on a ranch near Higgins. Desiring to ship the cattle to the market at Kansas City, they went, on September 7th, to the station of the only railroad in Higgins, and asked the agent to procure the necessary cars and have them at the station on the 12th inst. The agent said, in effect, that he would place the order at once, and expressed the belief that the cars would be furnished at the time requested. He acted promptly in transmitting the order to his superior officer, but the cars did not arrive at Higgins until September 19th. Relying on the belief that the cars would be on hand at the time for wihch they were ordered, plaintiffs received the cattle at the ranch of their vendors, and proceeded to drive them to Higgins. Before reaching that place, they learned that the cars had not arrived, and would not arrive in the near future. They were compelled to turn the cattle into a pasture near Higgins, and there keep them until the cars came. In consequence of being kept in a strange pasture for a time so long, the...