Carlisle v. Missouri Pacific Railway Company

• Decision Date: 21 May 1902
• Citation: 68 S.W. 898,168 Mo. 652
• Parties: CARLISLE, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY
• Court: Missouri Supreme Court

68 S.W. 898

168 Mo. 652

CARLISLE, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY

Supreme Court of Missouri, First Division

May 21, 1902

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Transferred to Kansas City Court of Appeals.

I. N Watson for appellant.

Elijah Robinson for respondent.

OPINION

ROBINSON, J.

This is an action by plaintiff, a shipper of cattle, against the Missouri Pacific Railroad Company, to recover alleged overcharges on seven shipments of cattle from Chama, New Mexico, to Missouri river points, and to Hutchinson, Kansas. Three of plaintiff's shipments were to Hutchinson Kansas, three to Kansas City, Missouri, and one to Irwin Missouri. Chama, New Mexico, the point from which plaintiff shipped his cattle, is on a branch of the Denver & Rio Grande railroad, which is a narrow-gauge road, and connects at Pueblo, Colorado, with the Missouri Pacific, a broad-gauge railroad, over which the cattle of plaintiff were re-shipped from Pueblo to their points of destination. Plaintiff claims that under the provisions of a joint tariff schedule made and published by the defendant and the Denver & Rio Grande Railway Company, in pursuance of the requirements of the Interstate Commerce Act, he was entitled to a rate of $ 90 per car, on a broad-gauge car of standard length (thirty feet) or $ 99 per car on car of thirty-six feet length, on all shipments made by him from Chama to Kansas City and Irwin; and that all charges made thereon should have been computed on the basis of the actual number of broad-gauge cars used in transporting the cattle from Pueblo to the points of destination on the defendant's road in Missouri, or upon the basis of the actual relation, the narrow-gauge cars used in the shipment from Chama to Pueblo, bore to the broad-gauge cars of standard length used on the defendant's road from Pueblo to Kansas City and Irwin.

The complaint as to the three shipments to Hutchinson, Kansas, grew out of what plaintiff claimed to be the violation of a contract made by him with the railroad company, for what is called in railroad and shippers parlance, a "feed in transit rate." As the issue of fact, upon this charge, was found by the trial court against plaintiff, and as no improper application of the law to the facts as developed is suggested by appellant, there is nothing on this appeal to consider upon that branch of his case. The sole remaining error suggested by appellant against the action of the trial court is the giving of the following instruction at the instance of defendant, numbered eleven, which reads:

"11. The court declares the law to be that if the standard-gauge cars were not and could not be used on the Denver & Rio Grande railroad at the time of the shipment made by the plaintiff from Chama on said railway, said company charged all other shippers under like conditions at the rate of three narrow-gauge cars to two standard-gauge cars, and if the plaintiff was notified of that fact and the correspondence read in evidence took place between him and the general freight agent, Wells, of the said Denver & Rio Grande Railway Company, then the plaintiff is not entitled to recover anything from this defendant on account of said rate of "three to two" charged by said Denver & Rio Grande Railway Company."

The alleged overcharge on the three Kansas City shipments and the one to Irwin, results solely from what plaintiff characterized an unwarranted rule, made and enforced by the Denver & Rio Grande Railway Company, on all shipments made from points on its Chama branch (including those made by plaintiff) to all points east over broad-gauge roads, whereby it allowed its shippers over that branch of its road, the use of only three narrow-gauge cars for two broad-gauge cars of the standard length of thirty feet, used on the broadgauge road to further prosecute the undertaking of carrying the stock forward from the Pueblo terminus of its road to the ultimate point of destination east. This rule, so far as the evidence shows, has...