Baker v. Schaff

• Decision Date: 07 April 1919
• Docket Number: No. 13220.,13220.
• Citation: 211 S.W. 103
• Parties: BAKER et al. v. SCHAFF.
• Court: Missouri Court of Appeals

211 S.W. 103

BAKER et al. v. SCHAFF.

No. 13220.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

Appeal from Circuit Court, Callaway County; D. H. Harris, Judge.

"Not to be officially published."

Action by Wilson O. Baker and others against Charles E. Schaff. Judgment for plaintiffs, and defendant appeals. Reversed, and remanded.

J. W. Jamison, of St. Louis, and D. W. Herring, of Fulton, for appellant.

J. R. Baker of Fulton, for respondents.

ELLISON, P. J.

Plaintiffs' action is to recover damages for negligent delay in transporting hogs from Steedman, Mo., to the National Stockyards in the state of Illinois, whereby plaintiff missed the market he should have reached. The action is also for negligent handling of the train, whereby 17 hogs were killed. There was a judgment for plaintiff.

It is alleged in the petition:

"That said two carloads of hogs were so negligently and carelessly handled by defendant that they did not arrive at the National Stockyards of Illinois within a reasonable time and did not arrive until 10 o'clock p. m. of December 13, 1917, too late for the markets of that day, and had to be sold on the markets of December 14th."

It is further alleged:

"That said hogs were so carelessly and negligently handled by defendant in the transportation of the same that when said hogs were delivered in National Stockyards, Ill., 17 of said hogs were dead; that said hogs died as result of careless and negligent handling of the same by the defendant; that by reason of the delay, and by reason of such negligent and careless handling a arid two carloads of hogs as aforesaid, the plaintiff suffered a decline in the market of 50 per cent. cwt., and also suffered an extra shrink on all of said hogs, which would not have occurred had said two carloads of hogs been delivered within a reasonable time."

There was evidence tending to show a delay in the transportation, and that if the delay had not occurred the stock would have reached destination in time for an earlier and higher market than it did reach. Defendant offered an instruction, which was refused, wherein it was declared that the burden was on the plaintiff to prove that such delay was occasioned by defendant's negligence. This should have been given.

The court doubtless refused it on account of a recent statute of this state wherein mere proof of delay beyond a reasonable time is declared to be prima fade evidence of negligence. Laws 1913, p. 177. But this shipment was ...