93 S.W. 861 (Mo.App. 1906), Ficklin v. Wabash Railroad Co.

Citation:93 S.W. 861, 117 Mo.App. 211
Opinion Judge:[117 Mo.App. 214] JOHNSON, J.
Party Name:THOMAS FICKLIN, Respondent, v. WABASH RAILROAD COMPANY, Appellant
Attorney:Geo. S. Grover for appellant. Peery, Lyons & Wood for respondent.
Case Date:February 05, 1906
Court:Court of Appeals of Missouri
 
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Page 861

93 S.W. 861 (Mo.App. 1906)

117 Mo.App. 211

THOMAS FICKLIN, Respondent,

v.

WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 5, 1906

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.

OPINION

Page 862

[117 Mo.App. 214] JOHNSON, J.

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:

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