Botts v. Wabash R. Co.

• Citation: 80 S.W. 976,106 Mo. App. 397
• Court: Court of Appeal of Missouri (US)
• Decision Date: 26 April 1904
• Parties: BOTTS v. WABASH R. CO.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 976

106 Mo. App. 397

BOTTS v. WABASH R. CO.^*

St. Louis Court of Appeals. Missouri.

April 26, 1904.

DELAY IN TRANSPORTING LIVE STOCK — DAMAGES — LIMITING LIABILITY.

1. A carrier cannot limit its liability for damages arising from delay in transportation of live stock, caused by its negligence, to the extra cost of feeding and watering the stock.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by J. A. Botts against the Wabash Railroad Company. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

Geo. Robinson and Geo. S. Grover, for appellant. W. W. Botts and A. C. Whitson, for respondent.

GOODE, J.

Action for damages on account of delay in the transportation of 50 head of cattle from Mexico, Mo., to Chicago, Ill., over the defendant's railroad. The cattle were loaded in three stock cars at Mexico at 8 o'clock in the morning of January 6, 1903, and were hauled to Luther, a station at the edge of the city of St. Louis, where the defendant's railway crosses the Mississippi river over the Merchants' Bridge to East St. Louis, and from that point were transported over the defendant's line to the city of Chicago. There were delays at several points along the line, so the cattle did not get into Chicago until the afternoon of January 8th, too late for that day's market, and had to be sold the morning of the 9th. Transposing those dates into days of the week, we find the cattle were shipped from Mexico on Tuesday morning at 8 o'clock, arrived in Chicago on Thursday afternoon about 1:30 or 2 o'clock, and were sold Friday morning. There is testimony that they should have arrived in time for the Wednesday market, the usual time from Mexico to Chicago being about 28 hours. Instead, the delay in arriving was some 30 hours, and the delay in getting them on the market was 2 days. The evidence is that nearly all cattle are sold in Chicago during the forenoon. Testimony was adduced that these cattle suffered in weight and appearance on account of the long time they were en route; that they shrunk from 25 to 50 pounds a head in weight, and looked gaunt and haggard. It appears, too, the price of cattle was lower on Friday than on Wednesday, so that the plaintiff's brought less money than they would have brought had they arrived in time for Wednesday's market. The petition avers the delays were due to the negligence of the defendant in that it held the cars containing the cattle on side tracks along the route, and so overloaded the trains they were in as to cause them to fall behind the schedule time. There was evidence to support these charges. To the contrary, the testimony of the defendant is that, while there were delays, they were unavoidable, and due largely to the severe weather that prevailed. The plaintiff testified the defendant's station agent at Mexico told him the train by which he shipped would reach Brooklyn, across the Mississippi, in time to make close connection with the train from East St. Louis to Chicago; but this turned out to be a mistake. The station agent testified he told the plaintiff the ordinary time was about 28 hours to Chicago, but the company did not guaranty that trains would run on schedule time, and there might be some delay.

The instructions given at the instance of the plaintiff followed the allegations of the petition, and permitted a recovery on a finding by the jury that due diligence was not used by the railroad company in transporting the cattle; that is to say, made the plaintiff's recovery depend on a showing of negligence in carrying the cattle. As to damages, the court instructed that, if the finding was for the plaintiff, the jury should allow him only $11.10, the extra amount he paid for feeding, watering, and caring for the cattle because of the delay.

Plaintiff filed a motion for new trial, alleging the...