Cronan v. St. Louis & S. F. R. Co.

• Decision Date: 07 July 1910
• Citation: 149 Mo. App. 384,130 S.W. 437
• Court: Missouri Court of Appeals
• Parties: CRONAN v. ST. LOUIS & S. F. R. CO.

130 S.W. 437

149 Mo. App. 384

CRONAN v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

Rehearing Denied July 19, 1910.

1. CARRIERS (§ 44)—APPLICATION FOR CARS— DUTY OF CARRIER.

It is the duty of the carrier, when applied to for cars, to advise the shipper of the situation and circumstances which are likely to occasion any unreasonable delay.

2. CARRIERS (§ 44) — FAILURE TO FURNISH CARS—UNEXPECTED PRESS OF BUSINESS—DEFENSE.

Where the agents of a common carrier told plaintiff to get his timber out of the forest, and that cars would be furnished to take it to market, and he was not notified at any time that the carrier would be unable to furnish cars on account of an unreasonable and unexpected press of business, it was no defense to an action for failure to furnish the cars to show an unusual and unexpected press of business.

3. CARRIERS (§ 45) — FAILURE TO FURNISH CARS—EVIDENCE—PROOF OF CAR SHORTAGE —ADMISSIBILITY.

In an action against a common carrier for failure to furnish cars to ship timber, where the defense was made that there was an unusual volume of traffic, plaintiff was properly allowed to prove by other shippers that in the seasons preceding the one in question there was a car shortage on defendant's road, in the district from which plaintiff was shipping.

4. CARRIERS (§ 45) — FAILURE TO FURNISH CARS—DECLARATIONS OF LAW.

In an action against a common carrier for failure to furnish cars to ship timber, where the evidence showed that defendant at no time notified plaintiff it could not furnish cars because of an unexpected rush of business, but encouraged him in getting out his timber and promised to furnish cars to ship it, a declaration of law that if there was a sudden and unexpected increase in defendant's business, or if high water delayed defendant in handling its business, it was not liable whether it notified plaintiff of this condition or not was more liberal to defendant than was justified.

5. CARRIERS (§ 45) — FAILURE TO FURNISH CARS—EVIDENCE.

In an action against a common carrier for failure to furnish cars to ship timber, where the uncontradicted evidence showed that defendant agreed to furnish at least one car a day and several times told plaintiff that cars would be furnished, and that when he inquired as to the situation and notified defendant that he was keeping a large crew of men on hand at a large expense to have them ready to load cars, defendant notified him that the cars would be furnished, the court was justified in refusing to declare as a matter of law, that there was no evidence of an agreement to furnish cars.

6. CARRIERS (§§ 40, 44)—DUTY TO SUPPLY CARS.

A common carrier is under a legal duty to supply patrons with cars to promptly move such freight as may be expected, according to the usual volume of business offered for shipment, and if timely demands are made for cars, and the carrier fails to furnish them, without lawful excuse, he is answerable for the proximate damage sustained by the shipper.

7. CARRIERS (§ 45) — FAILURE TO FURNISH CARS—EVIDENCE—SUFFICIENCY.

In an action against a common carrier for failure to furnish cars to ship timber, evidence held to support a judgment for plaintiff.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by John H. Cronan against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans and Moses Whybark, for appellant. Shepard & Shepard, for respondent.

GRAY, J.

This is a cause instituted in the Pemiscot county circuit court to recover damages from defendant as a common carrier, for failure to furnish plaintiff cars on which to ship poles and piling placed for shipment at James Switch, on defendant's railroad. Defendant appealed from a judgment for the plaintiff.

Plaintiff alleges in his petition that from the month of October, 1906, to the month of March, 1907, he was engaged in the pole and piling business in said county; that during the time above mentioned, he placed at the station of James, large quantities of cypress poles and piling to be shipped over defendant's railroad, all of which said poles and piling were placed at the usual place at said station of James for receiving such freight by defendant for shipment; that plaintiff tendered said poles and piling to defendant for transportation, under the terms such freight was handled by defendant, and offered to pay to defendant the regular and customary charges for the transportation of same; that he frequently requested and demanded of defendant to ship said poles and piling as aforesaid, and defendant promised to furnish plaintiff the cars so requested by him on which to ship his freight; that during said time he was prepared to handle, load, and ship four cars of said poles and piling per day, and requested that number of cars from the defendant; that the defendant wholly disregarded its duties in the premises, and failed to furnish said cars so requested by plaintiff by reason of which failure on the part of the defendant to furnish said cars for the plaintiff, large quantities of poles and piling accumulated at said station, awaiting cars, and on account of the delay and failure of defendant to furnish said cars, said poles and piling became damaged; that during the time said poles and piling were lying at the station waiting for shipment, there was a material drop in the price of the same, and if defendant had furnished the cars as requested and as it agreed to do, plaintiff would have been able to have sold the poles for the sum of $4,684.38 more than he afterwards realized for the same. Plaintiff further stated that during said time he was required to maintain and keep at said station, a foreman and crew of men ready to load cars when the same were furnished, and that on account of defendant's failure to furnish the cars, he was put to the additional expense of $1,275 for such purposes.

The answer, in addition to a general denial, affirmatively alleged that defendant furnished plaintiff at the station all the cars necessary for the transportation of its average business with him at that station, and distributed to said station its just and due proportion of cars of the kind requested and required to do business at that station, and all that it could spare, considering the average and usual business that was to be done at that station, and if the plaintiff was deterred in shipping the logs and piling alleged in the petition, it was because of an unusual pressure of business at that station, and out of the usual order, and beyond the average and ordinary amount of business at that station, together with an unusual pressure of business and a sudden influx thereof on defendant's railroad, a status which prevented defendant from supplying cars at all the stations along its railroad to meet the emergency; and that this sudden influx and unusual pressure of business was not anticipated and could not be foreseen in time to provide for that condition; that during the period complained of there were heavy rainfalls which caused damage to defendant's tracks and road, and on account thereof, defendant was unable, a part of the time, to supply the cars it otherwise would have furnished. The reply was a general denial.

Plaintiff offered testimony tending to prove that from the month of October until late in the spring of 1907, he continually made requests for cars, and that the defendant's agents promised to furnish the same; that he ordered four cars a day and got about two a week; that he had teams hauling poles and piling to the station, and at the time he was placing the poles and piling for shipment at the station, the prices were good and he had a sale for his entire product; that he used all the cars he could get and was prepared to load all the poles and piling he had at the station, if defendant had furnished him cars; that there remained on the ground, undisposed of, poles and piling of the value of $5,855.47; that he disposed of the same to the best advantage and his damages exceeded the amount of the judgment.

As there is some dispute concerning the promise and agreement of the agents of the defendant concerning the cars, we set forth the following testimony given by the plaintiff: "I took the matter of furnishing cars up with the trainmaster; met him and talked with him about this matter two or three times a month, and sometimes oftener. He always promised me cars and usually would help me right at the time. I talked about this matter to Mr. Brundidge, the agent, and to Mr. Turner, the trainmaster, and to Mr. Wright after he succeeded Mr. Turner. They continually made me the promise to furnish cars; sometimes they would say, `We can't do it to-day, but in a few days we can give you all you need—keep you going.' At all times they agreed to furnish me cars on which to ship this stuff. I talked to the agent and the trainmaster about the condition of the poles and piling, that they were being ruined. Talked to the agent about the cars nearly every morning; and when I would talk to him he would say, `All right; all I can, I will try to help you out.' Mr. Turner said: `I am going to keep you in cars, give you one every day.' I would speak to the station agent at Hayti about cars, and he would tell me he would give me cars, promised me cars from time to time, and I would go to him and he would say, `I can't do anything for you to-day, possibly not to-morrow; we haven't anything on the yard now in sight.' They did not tell me they were short of cars. They would tell me they could not furnish cars to-day, they didn't have any to-day, but they would almost invariably name a day, particularly...