Cunningham v. Chacago & A. R. Co.

• Decision Date: 27 September 1919
• Docket Number: No. 20184.,20184.
• Citation: 215 S.W. 5
• Parties: CUNNINGHAM v. CHICAGO & A. R. CO.
• Court: Missouri Supreme Court

215 S.W. 5

CUNNINGHAM v. CHICAGO & A. R. CO.

No. 20184.

Supreme Court of Missouri, Division No. 1.

September 27, 1919.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

Suit by W. E. Cunningham against the Chicago & Alton Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A. C. Whitson, of Mexico, Mo., and Charles M. Miller, of Kansas City, for appellant.

R. D. Rodgers and J. W. Buffington, both of Mexico, Mo., for respondent.

SMALL, C. I.

This suit was filed August 3, 1915, in the circuit court of Audrain county. The petition is in three counts, and each count is for damages sustained because of alleged negligent delay and injury from negligent handling in transporting a carload of cattle from Kansas City, Mo., to Laddonia, Mo. The cattle were shipped from Kansas City on the 13th, 15th, and 20th days of July, 1915, respectively. All of the counts in the petition are alike except as to dates and amounts. The first count alleged, among other things:

"Plaintiff states that said delay was caused and produced by the carelessness and negligence of the defendant; that while said stock was in transit the defendant so carelessly and negligently handled it that nine of said cattle were badly and permanently injured, and four of said cattle died as a result of their injuries, and all of said cattle were made stiff, sore, and stale, and were thereby injured and damaged; * * * and that because of the carelessness and negligence aforesaid, and because of the careless and negligent manner in which said stock was handled in transit, said cattle lost in weight about 2,500 pounds more than they would have lost had they been shipped in the usual time and in the usual and ordinary manner."

The answer was a general denial, and also set up a condition in the shipping contract requiring plaintiff to give an account of his damages, if any, to defendant at its office in Chicago within a reasonable time; but this portion of the answer was not pressed at the trial and is not involved in this appeal.

The case was tried before a jury at the June term, 1916, of the court; and on July 5th the jury returned a verdict for plaintiff and against defendant for $400 on the first count, $150 on the second count, and $150 on the third count of the petition on which judgment was entered for $700 against defendant.

The evidence of the plaintiff tended to show that in July, 1915, he purchased at the Kansas City Stock Yards seven carloads of bulls. One carload was shipped from Kansas City to Laddonia on each of the following days, to wit, 7th, 13th, 15th, 20th, 22d, 27th, and 30th days of July. Four of the shipments arrived at Laddonia in about 12 hours, and were in good condition and were practically uninjured. But three of the shipments, being those sued for, were in transit for about 26 hours, or 14 hours longer than the other four shipments. The four loads which were uninjured, and which arrived in Laddonia 12 hours after leaving Kansas City, were shipped on the live stock and meat train which left Kansas City at 6:30 p. m., and arrived at Laddonia the next morning at 6 o'clock. Each of the three loads involved in this suit was shipped on a livestock train which left Kansas City at 7:30 p. m. It was a local train, and when it reached Slater it was discontinued. Plaintiff's cattle were held three or four hours at Slater, and were then placed in another local train, which carried live stock to East St. Louis, and which made all stops between Slater and Laddonia, and arrived at Laddonia at 9 p. m. the next day, thus consuming about 26 hours in making the shipment complained of from Kansas City to Laddonia, a distance of about 182 miles.

Plaintiff testified that he had been shipping cattle to and from Kansas City over defendant's road for about 15 years, and that the cattle always came from Kansas City theretofore in 12 hours, arriving at Laddonia at about 3 a. m. That no shipments had ever come before on this local train on which the cattle is question were shipped. Other witnesses for the plaintiff testified to the same effect. Several of the defendant's witnesses, conductors on the slow trains on which the cattle in suit were shipped, testified they could not recollect of ever having set out a carload of cattle for Laddonia from this slow train prior to the three cars of plaintiff's in controversy.

Defendant's train dispatcher Emery testified for defendant that he did not place the said three cars in the train that left Kansas City at 6:15 p. m., and arrived at Laddonia at 6 a. m., or about 12 hours thereafter, because that was a fast live stock and meat train carrying live stock for points east of Roodhouse, Ill.; that the other four cars shipped for plaintiff were put in this fast train because there was not sufficient tonnage destined for points as far east as Roodhouse to make a full train; that on the days when the three cars in controversy were shipped there were cars of through cattle enough to make up the train, and for that reason plaintiff's cattle were not put in this fast train, but were carried on the local or slow train that left Kansas City the same night at about 7:30 p. m. The train dispatcher further testified that the full tonnage of the fast train was 1,050 tons, but that the one that left Kansas City on July 13th carried only 1,042 tons, and the train which left on" July 20th, 1,071 tons. He did not state the tonnage of the one that left on July 15th, but said that it carried 30 cars; that the fast train of July 15th had. 30 cars, and that of July 20th 31 cars. He made no definite statement of the tonnage or the number of cars in the fast trains which carried the other four loads of the plaintiff. Defendant also offered evidence that other cattle, prior to those in question, had been carried to Laddonia from Kansas City by the slow train, and that plaintiff's cattle were not injured to the extent claimed by him. The train crews also testified generally to the effect that there was no avoidable delay nor rough handling of the trains carrying the three cars.

Nearly all of the cattle in the seven cars shipped by the plaintiff were bulls, and had been castrated at the Kansas City stock yards just before being shipped. Plaintiff's evidence tended to show that none of the cattle shipped in the four cars which went in the fast trains suffered injury from any cause, although they had been castrated in the same manner as those in the three cars in controversy. It also tended to show that said operation had no injurious effect upon the cattle in the said three cars. Plaintiff's witness Inman, with many years' experience at the Kansas City stock yards, testified' that most of the stocker and feeder bulls, such as those shipped by the plaintiff, were castrated before being shipped from Kansas City, because they were better prepared and equipped at the stock yards there for performing this operation than they would be in the country, and also because the bulls would ship better after thus being operated upon. A veterinary surgeon testified for the defendant how he castrated bulls, and that it was attended with little danger, if properly performed, but that he did not think that it was safe to perform the operation at the stock yards by one not a veterinary surgeon; that it was better to perform the operation on the farm. He had, however, seen plaintiff's cattle in October, and only three of them had not healed up, and the injured parts on these three were not swollen.

The plaintiff's evidence tended to show that in each of the three cars, when they arrived at Laddonia, some of the cattle were very lame, and appeared to be injured in the back, hips, and legs, and all of them appeared to be gaunt and shrunken; that, although they had the best of care, seven out of the carload shipped July 13th never improved, but gradually got weaker and died. There was similar testimony as to the shipment of July 15th, out of which six died, and practically the same testimony was given by the plaintiff's witnesses as to the shipment of July 20th, out of which shipment throe died.

Plaintiff's testimony tended to prove that the usual shrinkage of cattle in transit for 12 hours from Kansas City to Laddonia was from 25 to 40 pounds per head; that the average weight of one carload of these cattle in Kansas City was 795 pounds; when they arrived in Laddonia their average weight was about TOO pounds. They were worth about $6.10 per hundred at Laddonia. Similar testimony as to the weight of the cattle, when shipped from Kansas City and on their arrival at Laddonia, was given as to the other two cars, showing that the shrinkage was greater on said two cars than the average shrinkage on cattle in transit but 12 hours from Kansas City to Laddonia.

The record shows the following questions, objections of defendant thereto, and the answers:

"Mr. Rodgers: Now, what is the usual shrinkage on cattle of the kind that was in this carload from Kansas City to Laddonia when they are carried and shipped in the ordinary and usual time? Do you know? A. Yes, sir.

"Mr. Miller: If your honor please, just a minute. I object to that unless he includes in the question the fact that they were castrated and shipped immediately out.

"The Court: Well.

"Mr. Rodgers: Well, you can ask him about that.

"The Court: Objection overruled.

"To which ruling of the court defendant then and there, by its counsel, duly excepted and saved its exceptions.

"Mr. Rodgers: Q. What is the usual shrink of cattle this age, character, and size? A. Twenty-five to forty pounds.

"Q. Per head? A. Yes, sir."

At the close of the evidence the defendant asked an instruction that upon the pleadings and evidence the verdict must be for the defendant, which the court refused. The court gave six instructions for the plaintiff on each count, to one of which defendant objects and claims is erroneous.

Said instructions are as follows, and are the same on...