McGrew v. Missouri Pac. Ry. Co.

• Decision Date: 22 February 1892
• Citation: 19 S.W. 53,109 Mo. 582
• Parties: McGrew, Appellant, v. The Missouri Pacific Railway Company
• Court: Missouri Supreme Court

19 S.W. 53

109 Mo. 582

McGrew, Appellant, v. The Missouri Pacific Railway Company

Supreme Court of Missouri, First Division

February 22, 1892

Appeal from LaFayette Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Alexander Graves for appellant.

(1) The court erred in granting instruction, numbered 2, for defendant. First. It is a mere abstract proposition of law not applicable to the evidence and particular case made by the pleadings. Huffman v. Hackley, 34 Mo. 277; Turner v. Loler, 34 Mo. 461. "The proper province of an instruction is to submit questions of fact not propositions of law." Per Black, J., in Albert v. Besel, 88 Mo. 153. Second. If it be not a mere abstract proposition of law, then it assumes as facts "an unusual increased demand for cars," and that "a sudden and temporary use" existed at some "particular portion of the year." These matters are controverted and constituted the material issue before the jury, and hence the instruction was erroneous. Merritt v Given, 34 Mo. 98; Turner v. Loler, 34 Mo. 461; Dowling v. Allen & Co., 88 Mo. 293; Moffatt v Conklin, 35 Mo. 453; Wright v. Fonda, 44 Mo.App. 643, and cases cited. (2) The court erred in granting for defendant instruction, numbered 8, for the same reasons as above given to establish the error in instruction, numbered 2, and the same authorities are here referred to in support of this point. This instruction, numbered 8, is even worse than number 2. (3) Instruction, numbered 12, is erroneous because the entire evidence in the record shows that cars furnished after four P. M. could not be loaded on the same day, the miners quitting work at that hour each day. (4) Instruction 13 for defendant is erroneous. This instruction in plain terms assumes that "a long continued, unusual and unexpected drought, or an unusual, continued and severe cold spell of weather prevailed in the section of country through which defendant's road ran," and, therefore, defendant is exonerated. It was a controverted fact by the pleadings and evidence on both sides as to whether this drought and excessive cold existed in this part of the country, so as to prevent the furnishing of the cars as demanded. This material issue should not have been assumed in favor of the defendant. This assumption was an invasion of the province of the triers of fact, and constitutes reversible error. Merritt v. Given, 34 Mo. 98; Turner v. Loler, 34 Mo. 461; Dowling v. Allen & Co., 88 Mo. 293; Moffatt v. Conklin, 35 Mo. 453; Wright v. Fonda, 44 Mo.App. 643, and cases cited. (5) The court committed palpable error in rejecting the record evidence of the amount earned by defendant "per freight train mile for the years 1886 and 1888." This was competent in rebuttal and would have disproved the allegations contained in the answer by way of affirmative defense, setting up the "unusual drought and excessive cold," whereby the transportation of freight was claimed by defendant to have been more expensive and impossible. (6) Plaintiff should at least have had judgment upon the fourth and fifth counts of the petition, the excuse for not furnishing the cars on the days referred to in them being suspension of work on account of the death of defendant's superintendent. This constituted no defense to said counts.

H. S. Priest and W. S. Shirk for respondent.

(1) There was no material error in giving defendant's second instruction. First. Granting that it is a mere abstract proposition of law, it could have in no way worked prejudice to plaintiff's case. Dodds v. Estill, 32 Mo.App. 41; Forpey v. Independence, 24 Mo.App. 288; Frizille v. Paint Co., 24 Mo.App. 529; Morris v. Railroad, 74 Mo. 367; Bradford v. Floyd, 80 Mo. 207; Carson v. McCormick Co., 36 Mo.App. 461. Second. It is an entire misconception on appellant's part that this "mere abstraction" assumes any fact, disputed or undisputed. Third. The abstract propositions of law therein contained are correctly declared. Hutchison on Carriers, sec. 114; Hutchison on Carriers, sec. 292, and cases cited; Rorer on Railways, p. 1220, par. 1; Faulkner v. Railroad, 51 Mo. 311. (2) There was no error in giving the defendant's eighth instruction. (3) There was no error in giving defendant' instruction, numbered 12. Because plaintiff was unable to load cars delivered to him after four o'clock, owing to the working hours of his miners, did not obligate the defendant to deliver them before that hour. Such a ruling would be absurd. (4) Defendant's instruction, numbered 12, does not assume any disputed facts. Besides, where an erroneous instruction is given for the appellee, but the same error is contained in instructions given at the request of the appellant, the judgment will not be disturbed. Garesche v. College, 76 Mo. 332; Smith v. Culligan, 74 Mo. 387; Crutchfield v. Railroad, 64 Mo. 255; State ex rel. v. Nauert, 6 Mo.App. 594. (5) There was no error in rejecting that part of defendant's report to the railroad commissioners showing the amount earned by defendant per freight train mile for 1886 and 1888. (6) The jury was not bound to find a verdict for plaintiff on the fourth and fifth counts, covering the twenty-sixth and twenty-seventh days of November. Granting that no cars were delivered to the mines on those days, yet the evidence of Noel shows, that on the twenty-seventh of November four cars of coal were hauled away from the Machine mine and four from the Tarlton mine. This is not denied, and proves conclusively that plaintiff had these cars standing empty at his mines several days before he used them on the twenty-seventh. But this court will not review the evidence, nor set aside the verdict of the jury even if it seemed to be against the weight of the evidence. St. Louis v. Lanigan, 97 Mo. 175; State v. Lowe, 93 Mo. 547; Caruth v. Richeson, 96 Mo. 186.

Black J. Barclay, J., absent.

OPINION

Black, J.

The petition in this case contains thirty-eight counts. The substantial averments of the first are that plaintiff gave defendant due notice that he would need and require four coal cars at his coal mine on the nineteenth of November, 1886; that defendant furnished one car, but failed and neglected to furnish the other three; by reason of all which he is damaged in the sum of $ 47.50. The other counts are of a like character, and are all founded upon a failure of defendant to furnish cars on different days from November 20, 1886, to January 25, 1887, for the transportation of coal from Lexington to Kansas City.

After a general denial, the answer avers in substance, that defendant had its road fully equipped with cars to do all the business ordinarily transacted thereon; that if the plaintiff did not receive all the cars which he ordered the failure to furnish them was due to these facts: First, an unusual and extraordinary demand for coal cars; second, an extraordinary and unusual drought which prevailed along the road, and by reason of which the defendant could not obtain water, and was compelled to use a great number of coal cars to haul water to supply the engines; third, a long and severe spell of cold weather, by reason of which the transportation of freight was greatly retarded.

The plaintiff's evidence tended to prove all the averments of the petition. The evidence for the defendant shows that it furnished the plaintiff two hundred and sixty-five cars during the dates covered by the petition, but this evidence also shows that defendant did not furnish the plaintiff all the cars which he called for and demanded. The defendant's evidence also tends to establish all of the affirmative defenses set up in the answer.

The court, at the request of the defendant, gave to the jury the following instructions: "2. The jury are instructed that the law governing this case is that the defendant, as a common carrier of freight, is only obliged to provide cars sufficient to haul such freight as would ordinarily be tendered it for transportation. It is not bound to anticipate an unusual increased demand for cars at any particular portion of the year, or to keep on hand cars beyond its ordinary requirements to anticipate any sudden and temporary use."

"7. The court instructs the jury that if they believe from the evidence in this case that the increase in the volume of business and the extremely dry and cold weather, and the great scarcity of water, rendered it impracticable for defendant to furnish all the cars called for during the period of time sued for in this case, and that defendant did distribute the cars it could and did furnish amongst those who wanted them, in as fair and equitable proportion as was reasonably practicable, and that plaintiff did get a fair and reasonable number of such cars for the shipment of his coal during said time, he has no good cause of action against defendant, and the jury must find for the defendant on each and all the counts in the amended petition filed in this case.

"8. The court instructs the jury that the liability of the defendant as a common carrier for failure to furnish cars when demanded by one who desires to have property transported is not absolute and unlimited like the liability for the prompt carriage and safe delivery of property after it passes into the possession and under the absolute dominion of the carrier; but that the liability for a failure to furnish cars when demanded depends upon the reasonableness of such demand and of the notice thereof, upon the practicability or impracticability of furnishing the number of cars so demanded at the times and places required, as well as upon the ability of the carrier to furnish the same without discriminating against others requiring cars; and, that if all or either of such facts and circumstances are shown to have existed at the times when the plaintiff in ...