Chinn v. Chicago & Alton Railway Company
| Decision Date | 25 May 1903 |
| Citation | 75 S.W. 375,100 Mo.App. 576 |
| Parties | THOMAS M. CHINN, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.
Judgment affirmed.
F Houston for appellant.
(1) The appellant, as a common carrier of freight and live stock, is only obliged to provide cars sufficient to haul such freight as would ordinarily be tendered it for transportation. It is not bound to anticipate an unusual influx of business, nor to anticipate an increased demand for cars for any kind of business at any particular portion of the year. McGrew v Railway, 109 Mo. 580, 586; Railroad v. Rea, 18 Ill. 488; s. c., 68 Am. Dec. 574; Railroad v Wolcott, 141 Ind. 267; Railroad v. Racer, 10 Ind.App. 503; Railroad v. Coal Co., 99 Ky. 217; Railroad v. Burrows, 33 Mich. 6; Newport News v. Reed, 10 Ky. L. Rep. 1016; Richardson v. Railroad, 61 Wis. 596; Railroad v. Smith, 63 Tex. 322; Railroad v. Campbell, 91 Tex. 551; s. c., 43 L. R. A. 225. (2) And the amount of business ordinarily done by a railroad is the only proper measure of its obligation to furnish transportation or cars. Ballentine v. Railroad, 40 Mo. 491; Dawson v. Railroad, 79 Mo. 293. (3) For the same reasons that the court erred in refusing defendant's demurrer to all the evidence, the court erred in giving all or any of the instructions asked by plaintiff. The plaintiff offered no evidence whatever, either direct or in rebuttal, to prove that the delay in furnishing cars was unreasonable under the conditions prevailing at the time, while testimony of B. B. Barry, C. J. Fellows, Mr. Hubbard and J. F. Emery was undisputed and conclusive on this question. See authorities, supra. (4) The evidence for defendant being uncontradicted and abundantly sustaining defendant's defense, the jury disregarded the instructions given for defendant in rendering their verdict. They were either actuated by prejudice or they misunderstood the instructions, or they willfully disregarded them. In doing either they found against the evidence, for the wrong party, and against the instructions given for defendant.
Alexander Graves for respondent.
(1) This demurrer could not have been sustained. The jury was not bound by defendant's evidence on any single point, or on the whole case, even though not contradicted. This is the settled law in Missouri from the organization of the Supreme Court to date. Wolf v. Campbell, 110 Mo. 120; Gannon v. Gas Co., 145 Mo. 515, 517, 518. (2) Everything proves the jury could not have found otherwise than they did and if the suggestion of prejudice is made we apply the rule in Hollenbeck v. Railway, 114 Mo. 112.
The petition is in two counts, the first of which is based on a claim made for damages occasioned by the unreasonable delay and detention in shipping a certain number of cattle, of which plaintiff was the owner, from defendant's Mayview station to Kansas City, in consequence of which, such cattle sustained an extra shrinkage in weight and depreciation in value; and the second is based on a claim made for damages occasioned by the unreasonable delay and detention by defendant in shipping a certain number of hogs, of which plaintiff was owner, at its Mayview station, to Bloomington and East St. Louis, in the State of Illinois, in consequence of which such hogs sustained extra shrinkage in weight and depreciation in value, etc.
After a general denial, the answer to the first count alleges that defendant kept a large number of extra livestock cars on hand which were ordinarily and reasonably sufficient to meet all the demands of past experience made by farmers and shippers along its lines; that owing to the extreme drought prevailing in the states through which its lines were located and operated, an unusual and unprecedented number of all kinds of live stock were offered for shipment over its lines, by reason whereof it was unable to promptly meet all the demands made upon it for stock cars, though it used every possible effort to do so; that a "car famine" prevailed, and in consequence of which it was unable to furnish the plaintiff the cars required until the 31st day of July, 1901--the date the shipment was made.
The answer to the second count was similar in allegation to the first. The replication contravened the new matter pleaded by the answer.
There was a trial and at the conclusion of all the evidence the defendant interposed a demurrer thereto, which was by the court denied. The question thus raised is whether or not the evidence adduced by the plaintiff established his prima facie case, entitling him to go to the jury.
On looking at it we find that it tends to prove that the plaintiff was the owner of 73 head of fat cattle and 148 head of fat hogs, and that on July 26th, 1901, he requested defendant to furnish him four cars on the 29th at its Mayview station in which to ship his cattle to the Kansas City market; that on the 13th day of July he requested defendant to furnish a car on the 16th in which to ship a part of the hogs to Bloomington, and on the 15th he still further requested the defendant to furnish another car for the 18th to go to East St. Louis.
It appears further that two days after he had requested the cattle cars he went to the defendant's station agent and told him that he wanted to know for certain whether the cars were going to be furnished at the time for which they had been requested, for if not he wanted to stop his cattle where there was feed and water, and thereupon the defendant's agent stated that he felt sure he--plaintiff--would get the cars, as he had requested them in ample time. On the day the cars had been requested the plaintiff drove his cattle, weighed them on defendant's scales, and put them in its stock pens, relying upon the assurance of the defendant's agent that the cars would be furnished to ship out on as requested. The cattle remained in the defendant's pens from 8 a. m., July 29th, until 6:30 p. m., the 31st, or 58 hours, without food, water or shelter. It further appears that when the cattle reached the Kansas City market on the 31st they had sustained extraordinary shrinkage and were greatly depreciated in value. They were in that condition which is known in market parlance as "stale cattle." The shrinkage and depreciation as alleged in the petition was well established by the evidence. The evidence was amply sufficient to carry the case to the jury on the issue as to whether or not the detention and delay was unreasonable, and as to whether or not the shrinkage and depreciation was occasioned by such detention and delay. The hogs were detained from July 16th to the 19th, 84 hours, and what has just been said in respect to the detention and delay of the cattle is equally applicable to them.
The contradictory evidence adduced by the defendant in support of the negative of the issue just referred to must, in the determination of its demurrer, be regarded as waived by it, or as if it had never been introduced. The plaintiff's prima facie case having been established by practically uncontroverted evidence, it devolved upon the defendant to establish the excusatory defense pleaded by it. The facts pleaded as constituting this defense were controverted by the replication. While the defendant adduced evidence tending to support its special defense, it will not do to say this was not contradicted by any evidence of the plaintiff.
As negativing the defense of "car famine," the plaintiff testified that on the evening of the 29th of July from the repeated assurances given by the defendant's agent he felt so sure that the cars would be furnished him that evening he took a passenger train for Kansas City expecting his cattle to follow. That night his hand in charge of the cattle telephoned him that no cars had been furnished; and he called up Starr, defendant's superintendent, who informed him that he had a train of empties at Slater (about 25 miles east of Mayview) and that he would have his cattle loaded out early the next morning (July 30th). But he did not do this, and...
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