Dawson v. Chicago & Alton R.R. Co.

• Decision Date: 31 October 1883
• Parties: DAWSON v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

79 Mo. 296

DAWSON

v.THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Audrain Circuit Court.--HON. E. ROBINSON, Judge.

REVERSED.

Macfarlane & Trimble for appellant.

Forrist & Fry for respondent.

HOUGH, C. J.

This was an action for damages alleged to have been caused by delay in the shipment of three cars of sheep from Centralia, Missouri, to Venice, Illinois, opposite the city of St. Louis.

It was admitted that the sheep were shipped under a special contract, by which plaintiff “agreed to assume the risk of all injuries which said sheep, or any of them, might receive or sustain from delays in the transportation thereof, and that he would assume all risks for damage of whatever kind which might be occasioned or sustained by reason of any delay in such transportation.” Plaintiff testified that defendant declined to accept the sheep for transportation unless he would sign such contract, though he did not read the contract, nor did the agent of defendant inform him as to its contents. The evidence showed that there was a delay of thirty-six hours beyond the usual time between Centralia and Venice. There was testimony as to the damages sustained by reason of the delay.

Defendant showed, by evidence, that just previous to the shipment of these sheep the bridge over the Missouri river at St. Charles was broken down, and all freight over the Wabash road to St. Louis was transferred at Mexico and carried to St. Louis over defendant's road, by reason of which an unusual amount of business was unexpectedly thrown upon defendant's road. The division superintendent testified that they took all the freight offered and did the best they could with it; that there was such an accumulation of freight that defendant was unable to transport it all without delay.

At the request of the plaintiff, the court gave the following instructions:

1. If the jury shall believe from the evidence in this case, that plaintiff shipped, upon defendant's cars, at Centralia, the sheep mentioned in the petition, and defendant undertook to transport the same over its road to Venice, as named in said petition, and within a reasonable time, and failed to do so, or that they so undertook so to do in a careful and prudent manner, and carelessly and negligently failed so to do, and plaintiff was actually damaged, then the verdict must be for plaintiff.

2. If the jury shall find the issues in this case for plaintiff, then in determining his damages they will consider the loss of the weight of said sheep by reason of said delay in said transportation thereof, if any, together with the difference in the price or market value of the sheep at the time they should have arrived in said market, and the time in which they did arrive, if any, together with all extra cost and expenses to plaintiff by reason of such delay in said transportation, if any, he was compelled to pay and make, as well as any loss or depreciation in the market value of said sheep, if any, by reason of the careless and negligent running and management of said cars, if the jury shall find from the evidence such carelessness and negligence, and find the amount thereof and fix the same in dollars and cents, but in no event will the amount so fixed exceed the sum of $630.90, as mentioned in plaintiff's petition.

3. Although the jury may believe from the evidence that plaintiff executed the contract offered in evidence by defendant, and for a valuable consideration, still said contract would constitute no defense to plaintiff's action, nor any mitigation of any damages that the jury may believe from the evidence in the case plaintiff may have suffered by reason of the carelessness or negligence of defendant in the premises, if the jury believe such carelessness or negligence has been shown by the evidence.

4. If the jury shall believe from the evidence that plaintiff shipped the sheep mentioned in his petition, and defendant undertook so to do, and there was no specific contract as to the time within which said transportation should be completed, and said sheep be delivered, then the law would require the same to be done and completed within a reasonable time, and if when defendant so received and undertook such transportation, it knew it had not the facilities for the performance of its said undertaking in such time, by reason of a want of proper and sufficient means of transportation, or other causes within its control, and by reason of want of such facilities, or other causes, said undertaking of defendant was not performed within such reasonable time, then such delay would be the result...