Cincinnati, N.O. & T.P. Ry. Co. v. Myers

• Decision Date: 23 September 1915
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. MYERS ET AL.
• Court: Kentucky Court of Appeals

178 S.W. 1038

165 Ky. 700

CINCINNATI, N. O. & T. P. RY. CO. v. MYERS ET AL.

Court of Appeals of Kentucky.

September 23, 1915

Appeal from Circuit Court, Lincoln County.

Action by W. M. Myers and others against the Cincinnati, New Orleans & Texas Pacific Railway Company. From judgment for plaintiffs, defendant appeals. Affirmed.

K. S Alcorn, of Stanford, and John Galvin, of Cincinnati, Ohio for appellant.

J. B Paxton, of Stanford, for appellees.

CARROLL J.

At 5 p m. on Tuesday, April 8, 1913, the appellees delivered to the appellant company at Moreland, Ky. for shipment to the Union Stockyards in Cincinnati, Ohio, three car loads of cattle, consigned to Stearn, Frank & Co. The cattle, which were not accompanied by the shippers, were not delivered to the consignees until 1:45 p. m. on Wednesday, the 9th of April. In the ordinary course of transportation the cattle should have been delivered at the stockyards at 7 or 8 o'clock in the morning of Wednesday, which would have been in time for the sale of cattle on that day. As it was, they were not received until the sales on Wednesday were over, and consequently the shippers sustained a loss of $311.41. To recover damages for the loss occasioned by the failure to deliver the cattle in reasonable time this suit was brought, and, the law and facts having been submitted to the court, there was a judgment in favor of the appellees for $310.93. A reversal of this judgment is asked upon the ground that the evidence wholly fails to show that the cattle were not transported with reasonable diligence, and, this being so, the petition should have been dismissed.

The evidence shows that the usual time required for the shipment of cattle from the point of delivery to destination is about twelve hours, and that in the ordinary course the cattle should have been delivered at the stockyards between 6 and 8 o'clock on Wednesday, and so, if the cattle left Moreland within an hour or two after they were loaded and delivered to the company, they would have reached their destination on the following morning at say between 6 and 8 o'clock. The record does not show when the cattle left Moreland, but, as they were loaded at 5 o'clock, it is fair to assume that they left in a short while thereafter. At any rate, if there was any good reason why the cattle did not leave Moreland until some hours after they were loaded, it was incumbent on the company to explain the delay, and this it failed to do.

Lippold, a witness for the appellee, testified that on the morning of April 9th, about 7 o'clock, he went to the station of the appellant company for the purpose of receiving the cattle of appellees. He testified that:

"I went to the freight depot of the Cincinnati, New Orleans & Texas Pacific Railway Company at McLean and Western avenue about 7 a. m. and asked the man in charge for the cattle,

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