Ficklin v. Wabash Railroad Co.
| Citation | 93 S.W. 861,117 Mo.App. 211 |
| Parties | THOMAS FICKLIN, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Decision Date | 05 February 1906 |
| Court | Court of Appeals of Kansas |
January 8, 1906;
Appeal from Gentry Circuit Court.--Hon. Wm. C. Ellison, Judge.
AFFIRMED.
Judgment affirmed.
Geo. S Grover for appellant.
(1) The demurrer to the evidence interposed by defendant at the close of plaintiff's evidence should have been sustained. R. S 1899, sec. 798; Clark v. Railroad, 39 Mo.App. 191; Sloop v. Railroad, 93 Mo.App. 609. (2) At the close of the entire case the court below should have directed a verdict in favor of the defendant. Authorities cited, supra; Perry v. Railroad, 89 Mo.App. 545; Wyrick v Railroad, 74 Mo.App. 4-6; Kellerman v. Railroad, 136 Mo. 191; Hart v. Railroad, 112 U.S. 331. (3) The instructions given by the court at the request of plaintiff were erroneous. Chambers v. Railroad, 86 S.W. 502. (4) The instructions asked by defendant and refused should have been given. Authorities cited, supra.
Peery, Lyons & Wood for respondent.
(1) That this is a case of actionable negligence seems too clear for extended argument. Guinn v. Railroad, 20 Mo.App. 543; Pruitt v. Railroad, 62 Mo. 527; Baker v. Railroad, 91 Mo. 152; Gelvin v. Railroad, 21 Mo.App. 273; Miller v. Railroad, 62 Mo.App. 252; Wilson v. Railroad, 66 Mo.App. 388-394; Gann v. Railroad, 72 Mo.App. 35. (2) It has been likewise frequently held in other jurisdictions that the carrier is equally liable whether the delay arises from a failure to furnish cars promptly, or from a delay in transportation while the stock are enroute. Ayres v. Railroad, 75 Wis. 215; McAbster v. Railroad, 108 N.C. 344; Hamilton v. Railroad, 96 N.C. 398; Railroad v. Lehman, 56 Md. 209; Railroad v. Campbell, 91 Tex. 351; s. c., 43 L. R. A. 225, and notes. (3) But as applied to the issues made by the pleadings and the evidence in this case, the instruction was a mere abstraction, and the jury were fully warranted under the authorities heretofore cited, in following the clear and correct directions as to the law contained in plaintiff's instructions numbered 1 and 2. (4) But not only was there negligent and actionable delay in beginning the transportation of these cattle, but there was also an unreasonable and negligent delay in transporting and delivering them to the consignee at the point of destination. This evidence entitled the plaintiff to go to the jury on the question of negligence in transportation of the cattle. Leonard v. Railroad, 54 Mo.App. 294; Botts v. Railroad, 106 Mo.App. 401 l. c.; Sloop v. Railroad, 84 S.W. 113, 93 Mo.App. 605; Anderson v. Railroad, 93 Mo.App. 677; Douglass v. Railroad, 53 Mo.App. 473; Blanchard v. Railroad, 60 Mo.App. 267; Hendrix v. Railroad, 107 Mo.App. 137; Smith v. Railroad, 87 S.W. 9, Mo.App. . (5) But the defendant contends that the plaintiff is not entitled to recover because the cattle were valued in the contract of shipment at $ 50 per head. This clause of the contract has no reference whatever to the character of damages sued for in this case, arising as they do from a decline in the market price of the cattle caused by delay in shipment. injury to" the animals. Such has ever been the construction put by this court on such a clause in this kind of contract. Leonard v. Railroad, 54 Mo.App. 293; Klass Com. Co. v. Railroad, 80 Mo.App. 164; Loeb v. Railroad, 85 S.W. 118, Mo.App. ; Harvey v. Railroad, 74 Mo. 538; Rogan v. Railroad, 51 Mo.App. 665; Kellerman v. Railroad, 136 Mo. 177, and cases cited; Starnes v. Railroad, 91 Tenn. 516; Nelson v. Railroad, 28 Mont. 297; Hart v. Railroad, 112 U.S. 331; Rice v. Railroad, 106 Mo.App. 371.
Action to recover damages from a common carrier on account of delay in the carriage of live stock to market. Plaintiff had judgment in the sum of three hundred dollars and defendant appealed. Material facts appearing from the evidence introduced by plaintiff are as follows:
On December 12, 1903, plaintiff, a live-stock feeder and shipper, applied through his son to defendant's agent at Stanberry, Missouri, for five cars, in which to ship eighty-four head of fat cattle to market, stating that the cars were needed for loading on the following Monday morning, the 14th. The son was not certain of the destination of the shipment and because of that fact, the The clause by its plain terms applies only to "loss of or agent did not then enter the order. The following day, the agent was notified that the market at St. Joseph was the one selected and thereupon received the order, and agreed to have the cars ready for loading at the time required. The following morning, plaintiff telephoned from his farm, four miles distant from Stanberry, to the agent inquiring about the cars and was informed that they were ready. Plaintiff then sought information relative to the bedding that should be brought for the cattle. The agent, after consulting with others in the office, informed plaintiff that the cars had not yet arrived, but would be there in twenty minutes, and plaintiff without objection from the agent expressed his purpose to drive the cattle in at once for shipment. He arrived with them at three or four o'clock in the afternoon and, with the consent of the agent, put them in defendant's shipping pens. Defendant had cars of its own available for the shipment, but the agent informed plaintiff that the rules required the use of no other cars than those of the Chicago, Great Western railroad in shipments of stock to St. Joseph, and that the cars ordered had not arrived. Had they been on hand, the cattle could have been loaded in time to leave on a train that departed from Stanberry at about six o'clock that evening. The cars were not provided until after the leaving of that train. The cattle, with the exception of one steer that escaped, were loaded and started on their journey at about ten o'clock that night. Defendant hauled them a distance of nine miles to its junction with the Chicago, Great Western road at Conception and there delivered the cars to that carrier. They did not reach St. Joseph until eight-thirty the next morning, and then for some reason, not shown, were not switched to the unloading chutes until about eleven o'clock. It thus appears that about twenty hours elapsed from the time the cattle were received at defendant's pens in Stanberry to that of their delivery and that twelve or thirteen hours were consumed in the transportation. The time ordinarily required is about six hours. It was plaintiff's purpose, known to defendant, to have his cattle on sale at the stock yards during the best of Tuesday's market. When the cattle arrived, the market for that day was practically over. The market hours are from eight-thirty a. m. to three p. m., but on this particular day the buyers had filled their orders before plaintiff's cattle could be offered for sale and, as a result, the highest offer plaintiff received was fifteen cents per hundred pounds less than the ruling price during the hours the buyers were supplying their demands. The cattle were not sold until the following morning, when, on account of a general decline in the market, they were sold for twenty-five cents per hundred pounds less than could have been obtained for them, had they arrived in time for the market on Tuesday. It further appeared that the cattle suffered a loss in weight of fifteen or twenty pounds per steer on account of their long wait in the pens at Stanberry and the unusual delay in their transportation. Plaintiff claims that defendant failed to observe ordinary care and diligence in supplying him with cars as well as in the carriage of the cattle.
Defendant introduced evidence tending to relieve it from the imputation of negligence, but, as this issue of fact was submitted to the jury, it is unnecessary to detail the facts bearing upon it adduced by defendant, and our chief concern is with the questions raised under defendant's request for a peremptory instruction, which the court refused to give.
Plaintiff in his petition founds his cause of action solely upon the negligence of defendant, and the court in the instructions given at his request submitted no other issue to the jury. Doubtless, plaintiff thus restricted the scope of his common-law cause of action in anticipation of the defenses that would be interposed under the written contract of affreightment, signed by him before the transportation began. Whatever his motive may have been, plaintiff must recover, if at all, upon the cause of action pleaded, that is to say, the burden is upon him to show that defendant was negligent either in the furnishing of cars or in the transportation and that such negligence was the proximate cause of the damage suffered. Defendant says that plaintiff failed to sustain his burden. First, with respect to the furnishing of cars, it is claimed this issue was withdrawn from the consideration of the jury in an instruction given at the request of defendant and that, as plaintiff has not appealed, he cannot now uphold the judgment on that ground; and second, that no facts appear in evidence supporting the charge of negligence in the transportation, for the reason that the cause of the unusual delay is...
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