Ballentine v. North Missouri R.R. Co.

• Decision Date: 31 March 1867
• Citation: 40 Mo. 491
• Parties: WILLIAM BALLENTINE, Respondent, v. THE NORTH MISSOURI RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

40 Mo. 491

WILLIAM BALLENTINE, Respondent,

v.THE NORTH MISSOURI RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Court of Common Pleas.

Instructions given for the plaintiff:

1. The court tells the jury that on the 15th day of December, 1863, and from thence till the ____ day of January, 1864, it was the duty of defendant to furnish sufficient accommodation and rolling stock for the transportation within a reasonable time of all freight and live stock that were offered for transportation at the place of starting, at the junction of other roads, at the several station houses and stock yards on the road, and take the same without any unnecessary delay in the order in which such freight and live stock were offered, and transport the same to any place on the line of said road, or to such point on said road as the shippers or consignees should designate; and if they should believe from the evidence that plaintiff had at Allen, a station on said road, on the 15th day of December, 1863, 500 pork hogs that he designed to ship to St. Louis, on defendant's road; that on said last named day the freight agent of defendant at Allen was notified thereof and requested to ship said hogs; that said hogs were kept at said station a reasonable time awaiting shipment, and that plaintiff was ready and willing to pay the freight thereon; that for want of such sufficient accommodations defendant neglected and refused to ship said hogs within a reasonable time, they will find for plaintiff, unless they shall further believe from the evidence that there was a sudden, unforeseen and unsuspected influx of freight and live stock at the several stations on the road beyond the capacity of the rolling stock on the road to carry away in a reasonable time, which prevented defendant carrying plaintiff's hogs in such a reasonable time and in the order in which they were offered.

2. What is a reasonable time in which freight like that in controversy should be shipped after it is offered, is a question for the jury to determine, and in so doing they should take into consideration all the circumstances detailed in evidence.

3. That on the 1st day of December, 1863, and until the 23rd day of January, 1864, it was the duty of defendant, within a reasonable time and without unnecessary delay, to ship all the freight and live stock that should within the time aforesaid be offered for transportation at the several stations and stock yards on said road to any other place on their line of said road, or to such point on said road as the shipper or consignee should designate, and in the order of time such freight and live stock were offered for transportation at the several stations and stock yards on said road. And if they believe from the evidence that plaintiff had on the 15th day of December, 1863, at Allen, a station and stock yard on said road, 500 pork hogs that he desired to ship on said road to St. Louis, and was ready and offered to pay the freight thereon, and so informed the freight agent at Allen; that said hogs remained at said station until about the 17th day of January, 1864, ready for shipment, and that between the days last aforesaid the defendant might and should have shipped the said hogs according to the rule above stated, but that during the said time defendant neglected and refused to ship said hogs, and did ship live stock for other persons which had been driven to and first offered for shipment at any of the stations and stock yards on said road after the plaintiff's hogs were so offered, to the prejudice of plaintiff's right to have his hogs shipped in the order of time in which they were offered for shipment at said Allen station, then they will find for the plaintiff on the fifth count in the petition. And if they also find that said hogs were afterwards, on or about the 23d day of January, 1864, shipped by defendant from Martinsburg station, on said road, the measure of damages will be the expense of keeping, feeding and taking care of said hogs from the day on which they should have been shipped till the day they were shipped, as also the loss incurred in the shrinkage in weight of said hogs between the times last aforesaid, if any, and also the loss occasioned by the dying of any of said hogs by reason of such delay in shipping said hogs from the day they should have been shipped till said 23d day of January, 1864, provided they find from the evidence that said shrinkage in weight and death of hogs were not occasioned by any want of care on the part of plaintiff in feeding and taking care of said hogs.

4. If the jury believe from the evidence that on the 18th and 19th days of January, 1864, defendant received two car loads of dead hogs at Allen station, to be delivered to plaintiff in St. Louis, and that defendant failed and neglected to deliver said hogs in St. Louis or elsewhere to plaintiff, they will find the issue on the second count for the plaintiff, and will assess his damages at the value said hogs have been proved to be worth; and if they further find that Chapman, the station agent at Allen, assumed to pay the freight on said dead hogs to said company, and said company accepted such assumption and held Chapman responsible therefor, they will also find the amount of such freight for plaintiff.

5. If the jury believe from the evidence that on the 23d day of January, 1864, defendant received on one of its freight trains 17 dressed hogs in good order, to be thence transported to St. Louis within a reasonable time, and that defendant failed and neglected to so deliver said dressed hogs in St. Louis or elsewhere, to plaintiff, within a reasonable time, they will find the issue on the third count for the plaintiff, and assess the damages at the amount proved to have been sustained by plaintiff by reason of such failure and neglect.

Plaintiff's instruction refused:

1. To constitute such sudden, unforeseen and responsible influx of freight and stock a defense to this suit, it must appear that defendant had used and run as much rolling stock as could be used and run on the road with safety to its operations.

Defendant's instructions given:

1. The jury are instructed that there is no evidence before them which is sufficient in law, if true, to warrant them in finding a verdict for the plaintiff on the first count of his said petition, founded on a supposed special contract.

2. If the jury believe from the evidence that the plaintiff shipped on said road the dead hogs in the second count of his petition mentioned to be carried to St. Louis, and that the same were carried and delivered to the plaintiff or his agent at St. Louis, or that the same were deposited in the warehouse or usual place where such freight is placed, and that the plaintiff or his agent had notice or knowledge of the arrival of said hogs at such place ready for delivery to him, or of the time when said hogs would arrive there, they will find for defendant on said count.

3. If the jury believe from the evidence that the loss in said dressed hogs (in the third count of said petition mentioned) was occasioned by the warmth of the weather, and the natural and inherent infirmity and tendency of such freight to damage under the influence of a change in the weather from cold to warm, and not by any carelessness or negligence on the part of the defendant, its officers or servants, they will find for the defendant.

Defendant's instructions refused.

1. The jury are instructed as to damages in case they find for plaintiff on either the fourth or fifth count of said petition, that if they believe from the evidence that said hogs, or any of them, died from freezing, or the effects of excessive cold in the weather, or were smothered by piling together in consequence of such cold in the weather, or died through want of proper care on the part of the plaintiff or the persons having charge of them, they will not include the value of such hogs in their assessment of damages.

2. The jury are instructed as to damages in case they find for plaintiff on either said fourth or fifth count, that if they believe from the evidence that the loss by shrinkage in weight of said hogs, or any of them, was occasioned by insufficient feeding or want of proper care on the part of plaintiff or the persons having charge of them, or by the effect of excessive cold in the weather, they will not include any such loss in their assessment of damages.

3. The jury are instructed that if they believe from the evidence that previous to said month of December, 1863, the defendant had furnished and had on said road sufficient accommodation and rolling stock for the transportation of all freight and live stock that was ordinarily and generally offered for transportation on said road within a reasonable time after the same were offered, and that during said months of December and January the defendant kept all of its available accommodation and rolling stock employed with reasonable diligence in receiving and transporting the freight and live stock that were offered for transportation on said road; that during said month of December there was an unusual influx and an extraordinary press of freight and live stock for transportation on the road beyond the capacity of the road and all accommodations and rolling stock to receive and transport immediately and at once, and that while the said hogs of plaintiff (in the fifth count in his petition mentioned) were waiting to be received in turn after they were offered for transportation, in the order of time and priority in which they were so offered, there occurred along the line of said road a severe and unusual snow storm and great cold, obstructing the operation of said road and hindering it from thereafterwards receiving and transporting said hogs of the plaintiff in the order of time and priority in which they were offered for transportation thereon, then defendant is not liable on the ground and for the reason...