Cornett v. Chicago & A. R. Co.

• Decision Date: 06 June 1911
• Citation: 138 S.W. 51,158 Mo. App. 360
• Court: Missouri Court of Appeals
• Parties: CORNETT v. CHICAGO & A. R. CO.

138 S.W. 51

158 Mo. A. 360

CORNETT v. CHICAGO & A. R. CO.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

1. TRIAL (§ 191) — INSTRUCTIONS — ASSUMED FACTS.

In an action against a carrier for injuries to mules in transit, an instruction that the burden was on plaintiff to show that the alleged injuries were the direct result of the negligence of the defendant, and were not the result of some other cause, or the result of the vicious propensities of the animals, was not objectionable as assuming that defendant was negligent.

2. CARRIERS (§ 230)—INJURIES TO ANIMALS— INSTRUCTIONS—SUFFICIENCY.

In an action against a carrier for injuries to mules in transit, an instruction that the burden was on plaintiff to show that the injuries to the mules were the direct result of defendant's negligence, and were not the result of some other cause or of the vicious propensities of the animals, was too vague, in that it did not inform the jury what act of the defendant would constitute negligence, if any, and, in the absence of any other instruction specifically defining the particular facts which would constitute negligence or carelessness justifying the recovery, was reversible error.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by W. E. Cornett against the Chicago & Alton Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John D. Orear, Scarritt, Scarritt & Jones, Charles M. Miller, and E. S. Gantt, for appellant.

REYNOLDS, P. J.

Appellant operates a line of railroad running from Kansas City east through the Missouri towns of Armstrong, Mexico, Francis and Rush Hill in the order named. On the 14th of January, 1909, respondent delivered to appellant at Armstrong, 25 head of mules, of which he was owner. Appellant received them for transportation to Rush Hill. The mules were loaded and taken from Armstrong by a local freight train at about 1:30 p. m. of the date named and arrived at Mexico at about 4:30 p. m. that day. They were accompanied by a stockman in the employ of respondent. Upon the arrival of the local freight at Mexico this stockman, getting off the local, stood ready to accompany the car on to Rush Hill, he expecting the car to be attached to a fast freight known as No. 130, which was due to arrive at Mexico about 5:35 that evening. No. 130 did not arrive until about 6:30. On its arrival the stockman went to the caboose and was in the act of getting on the train, when the conductor asked him where he was going. He answered that he was in charge of a load of mules that would be taken by No. 130 from Mexico to Rush Hill. The conductor informed him that he had no orders to take this car of mules and that the car would not be taken on that train. They went to the station to find out more about the matter and there the stockman was informed by the yardmaster that the car of mules had been taken to Francis, a station some 2 miles east of Mexico, upon the local freight train due at Mexico at 4:30. He was further told by the yardmaster that the mules would remain in the yards at Francis until the next morning when they would be taken by local freight from Francis to Rush Hill. Mexico is a division point for local freight trains running each way daily from Mexico. The stockman then called respondent up at Rush Hill, informed him of the situation and on invitation of respondent went to Rush Hill and spent the night with him. The next morning the car of mules arrived at Rush Hill at about 9 o'clock. When the mules were loaded at Armstrong they were in good order and condition; when unloaded at Rush Hill they were in bad condition, about 12 of them were raw across their rumps and tails and scarred up on the body and legs, all of them sore and stiff; they had worn the skin into the flesh and all of the mules were more or less injured and in bad condition generally. Respondent had been making shipments of mules from Armstrong each spring for six years prior to this time and during that time this same local freight had been conveying the mules to Mexico and the fast freight No. 130 would pick up the car at Mexico, carry it to Rush Hill, arriving there about 7 o'clock on the same day. There was evidence in the case tending to show that when a train or car in which mules were being carried was moving, that the mules braced themselves to meet the movements of the car and were comparatively quiet, but when the train remained stationary for any length of time the mules became excited, restless and irritable and as a result moved about, fighting and rubbing around in the car.

It appears that Francis is a kind of switching yard for Mexico Station and there was evidence to the effect that the damage to 12 of the mules was $10 a head and to the remaining 13 about $4 a head. The mules appeared to be in good condition when the car reached Mexico that evening.

The defense in the case is that it was not the duty of appellant, under the law, to take the mules from Mexico to Rush Hill on this special or fast freight No. 130; that it was not its custom to do so, and that it could not take this car of mules on this particular occasion because this train No. 130 at the time had fat stock on it for the market in St. Louis and that to have delayed in taking on the car at Francis or Mexico and cutting it off at Rush Hill would have delayed this train No. 130 in reaching St. Louis in time for the morning market there, for which market the cattle or stock that No. 130 was carrying was destined, and it was in evidence for appellant that the delivery at Rush Hill was within reasonable time.

The petition in the case, after the usual recitals, avers that defendant, in disregard of its agreement as a carrier to carry the stock well and safely and...