Decker v. Missouri Pac. Ry. Co.

• Decision Date: 03 October 1910
• Citation: 149 Mo. App. 534,131 S.W. 118
• Parties: DECKER v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

131 S.W. 118

149 Mo. App. 534

DECKER v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

October 3, 1910.

1. NEGLIGENCE (§ 121)—BURDEN OF PROOF.

Negligence is a positive wrong, and a plaintiff relying on it must prove it affirmatively.

2. CARRIERS (§ 228)—LIVE STOCK — DELAY— BURDEN OF PROOF.

One suing a carrier of live stock for negligent loss and delay in transportation, not based on a breach of his common-law duty as insurer, has the burden to prove negligence.

3. CARRIERS (§ 228) — LIVE STOCK — NEGLIGENCE—EVIDENCE.

Mere proof of unusual delay in transporting live stock does not of itself show negligence, but circumstances even slightly tending to show a negligent origin of the delay will support an inference of negligence.

4. CARRIERS (§ 228)—LIVE STOCK—LOSS IN SHIPMENT — NEGLIGENCE—EVIDENCE—SUFFICIENCY.

Where live stock were lost in transportation and the circumstances are unexplained, it is presumptive evidence of the carrier's negligence.

Appeal from Circuit Court, Bates County; C. A. Denton, Judge.

Action by C. M. Decker against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

Martin L. Clardy and Scott & Bowker, for appellant. J. F. Smith, for respondent.

JOHNSON, J.

Plaintiff, a live stock shipper, sued defendant, a common carrier, for damages to 172 hogs shipped from Butler, Mo., to the stockyards at East St. Louis. Plaintiff delivered the hogs to defendant at Butler in the morning of October 23, 1903, and, in the usual course of transportation, they should have been at the stockyards in East St. Louis the next day in time for the early morning market. For some cause or causes not disclosed, there was a long delay in the transportation, and the hogs did not reach the stockyards until about 9 o'clock p. m. October 25th, too late for any earlier day's market than that of October 26th. Only 161 of the hogs were delivered by defendant; the remaining 11 having been lost by defendant in the course of transportation. Those delivered suffered a shrinkage in weight on account of the transportation. The items of plaintiff's loss were $129.77, value of the lost hogs; $67.33, loss on account of shrinkage caused by the unusual delay; and $5 charged in the freight bill for feeding the hogs at Sedalia. This made a total of $202.10, which is the amount of the verdict and judgment recovered by plaintiff.

The petition alleges "that said hogs were loaded on defendant's cars and started from the station at Butler, Mo., aforesaid, on the morning of October 23, 1907, in ample time to have reached plaintiff's consignees in time for the market on the 24th of October, 1907, but through the carelessness and negligence of defendant, and its negligent delay in shipment, said consignment of hogs did not reach its destination aforesaid until 9 o'clock p. m. of the 25th day of October, 1907, and could not be placed on the market until the 26th of October, 1907; that, when the consignment of hogs did reach its destination, 11 of said hogs, of average weight of said shipment, were missing, having, through the negligence and carelessness of defendant, been lost in transit. The said hogs so lost were of the value of $129.77, and through the negligence and carelessness of defendant, and its negligent delay in shipment, the balance of said hogs lost by way of shrinkage in weight to the extent of $67.33, and plaintiff was compelled to expend large sums of money as extra expense in the care and feeding of said hogs, to wit, $5, while delayed in...