Cravens v. Hines

• Decision Date: 28 February 1920
• Docket Number: No. 2466.,2466.
• Citation: 218 S.W. 912
• Parties: CRAVENS et al. v. HINES, Director General of Railroads, et al.
• Court: Missouri Court of Appeals

218 S.W. 912

CRAVENS et al. v. HINES, Director General of Railroads, et al.

No. 2466.

Springfield Court of Appeals. Missouri.

February 28, 1920.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by W. A. Cravens and another against Walker D. Hines, Director General of Railroads, and the Missouri Pacific Railroad Company. Judgment for plaintiffs, and defendants appeal. Reversed as against defendant Missouri Pacific Railroad Company,. and affirmed as against Director General of Railroads.

Jas. F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellants.

L. M. Henson, of Poplar Bluff, for respondents.

BRADLEY, J.

This is a suit to recover damages to seven cars of cattle in intrastate shipment from Fisk, Mo., to Brown's Spur, Mo., on the Missouri Pacific between Fisk and Sikeston. Plaintiffs recovered, and defendants appealed.

Plaintiffs allege that on January 10, 1918, plaintiff Cravens delivered to defendants 215 head of Polled Angus cows, 64 red and spotted steers and heifers about 18 months old, and 8 black calves for shipment from Fisk to Brown's Spur, and that defendants agreed, in consideration of freight charges paid, to safely transport said cattle, and to deliver them at Brown's Spur to plaintiffs in as good condition as when received; that defendants carelessly, negligently, and recklessly handled the train on which the cattle were loaded so as to wound, bruise, and otherwise injure said cattle, from which said injuries 63 of the Polled Angus cows died, 8 of the 18 months old steers died, 3 of the calves died, and 100 of the remainder of said cows were damaged in the sum of $10 each, all to plaintiff's damage in the sum of $6,720, for which judgment is asked. The railroad company denied that it was operating the railroad when plaintiffs' cattle were injured, and avers the same was being operated and was under the control, management and direction of the Director General of Railroads. The answer avers that plaintiff entered into a written contract with the agent, manager, and operator of said railroad, and that plaintiffs agreed in said contract to assume certain risks hereinafter discussed. Further answering, it is denied that the train in which said cattle were loaded was negligently, carelessly, or recklessly handled, and that any of said cattle were injured or died from the effects of any negligent, careless, or reckless handling of the train in which they were shipped; but defendants state that when the cattle were loaded at Fisk they were poor, emaciated, and weak, and had not been properly fed and kept from exposure for a long time prior to shipment; that they were in a weakened condition, and that at the time the weather was extraordinarily cold and stormy, and that said cattle were not in a condition physically to endure the exposure, that plaintiff failed to unload the cattle when they arrived at their destination, but suffered them to remain in the cars for many hours and endure the severe weather, and that whatever damage was done by reason of their weakened condition and long exposure, due to plaintiff's own conduct. No mention of a reply appears in the record, but the cause was tried as though one was filed, and no point is made in this respect.

At the request of plaintiffs the court instructed that, if the jury found that plaintiff Cravens was the owner of 287 head of cattle, subject to a chattel mortgage held by plaintiff Bank of Poplar Bluff, and that said cattle were shipped by Cravens from Fisk to Brown's Spur over the Missouri Pacific Railroad on or about January 10, 1918, and that the train on which said cattle were loaded was so carelessly, negligently, and recklessly handled by the servants, agents, and employs of defendants, or either of them, that any number of said cattle were killed, or injured so as to cause the death of said cattle, or injured so as to cause the death of said cattle, or reduce their value, then they would find for plaintiffs.

At defendant's request the court instructed:

"That before the jury could find for plaintiffs they must believe and find from a proponderance of the evidence that the defendant "Missouri Pacific Railroad Company, its agents and servants, carelessly, negligently, and recklessly handled the train on which the cattle described in plaintiffs' petition were loaded, and that by reason of the careless, negligent, and reckless handling of the train said cattle were wounded, bruised, and injured, and from the effects of said careless, negligent, and reckless handling of said train they died, and unless you do so find, your verdict must be for the defendant."

At defendants' request the court further instructed that, if the jury found from the evidence that the cattle described in plaintiffs' petition were poor, emaciated, and weak, and that they had not been properly fed and kept from exposure prior to their shipment, and that by reason of their weakened condition from emaciation, and by reason of the severe cold weather, they died, then the verdict would be for defendant.

Defendants requested and the court refused this instruction:

"The court instructs the jury that under the contract which the plaintiff made with the defendant for shipping the cattle described in plaintiffs' petition it became and was the duty of the plaintiff to load and unload said cattle onto and off the cars at his own expense and risk; and if you believe and find from the evidence in this case that the plaintiffs suffered the cattle to remain in the cars for many hours and endure the severe weather, and that by reason of thus being exposed in their weakened condition, if you believe that they were in a weakened condition, they died or were injured, then your verdict must be for the defendants."

Appellants seek reversal for alleged error: (1) In the admission and exclusion of evidence; (2) in the giving and refusing of instructions; (3) and the sufficiency of the evidence to support the verdict.

1. It is contended by defendants that it was error to permit plaintiff Cravens to state that the cattle were in better condition when shipped from Fisk to Brown's Spur than when they were shipped from East St. Louis: Plaintiff Cravens had bought the Polled Angus cattle at National Stockyards, Ill., about November 1st prior to shipment from Fisk, and had been feeding them at his farm near Fisk since that time. The defense was that the cattle were so poor and. emaciated that they were not physically strong enough to endure the hardships naturally and ordinarily incident to the shipment considering the condition of the wealther at the time. Cravens was an experienced stockman, and had the cattle under his care and observation since he bought them at the National Stockyards, and as they were shipped from place where bought to Fisk, a much longer distance than from Fisk to Brown's Spur, and were in better condition at the time of shipment from Fisk than when shipped to Fisk, then we think it was competent to prove it, and such evidence tends to meet the issue raised by the answer that the cattle were so poor and emaciated that they were not physically able to stand the shipment. Defendants make the point in challenging the competency of this evidence that it was not alleged that the cattle were in good condition when received for shipment from Fisk to Brown's Spur. We do not think that the mere fact that it was not alleged that the cattle were in good condition is of any consequence so far as the question of the competency of this evidence is concerned. Defendants raised the issue of the condition of the cattle in the answer, and plaintiffs had a right to meet the issue when thus raised, whether alleged or not. Defendants cite us to no authority that the admission of this evidence is error, and we find none.

It is contended that error was committed in permitting Blankenship to testify that in his opinion the cattle were not too weak to ship. Blankenship was a stockman of several years' experience, and sold the Polled Angus cattle to Cravens. He saw the cattle the day they were shipped...