Dickinson v. Seay
| Citation | 175 P. 216,71 Okla. 66,1918 OK 547 |
| Decision Date | 24 September 1918 |
| Docket Number | 8614. |
| Parties | DICKINSON et al. v. SEAY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action against a common carrier to recover damages for the negligent delay in the transportation of cattle from a point in this state to their destination in another state witnesses who, from past experience, are familiar with such transportation, may properly testify as to the usual and customary time required to make such shipments, and from this testimony and other competent testimony in the case it is the province of the jury to determine whether or not the time actually taken by the carrier for the transportation of the cattle alleged to have been negligently delayed was reasonable or unreasonable.
In such an action, the question as to what is a reasonable time for the transportation of the cattle, and as to the reasonableness and sufficiency of the excuse which the carrier makes for its delay, is for the determination by the jury, under proper instructions from the court.
Where damages are claimed from a common carrier on account of weight unnecessarily lost by cattle in transit, and on account of a decrease in the market value of the cattle when they reached their destination, occasioned by the negligent delay of the carrier in transporting the shipment, witnesses experienced in such matters may properly testify as to the loss of weight of the cattle, and as to the decrease of the market value of the cattle on account of such loss of weight and as to the decrease of the market value of the cattle on account of injuries to the cattle while in transit affecting their market value.
In an action against a common carrier to recover damages for negligent delay in the interstate transportation of cattle where the evidence reasonably tends to show that the carrier failed to transport the cattle within a reasonable time, it is sufficient to take the question of negligence to the jury, and the presumption of negligence is not explained or rebutted by positive evidence on the part of the carrier that the regular schedule of its first train after the cattle were received by it for shipment, and by which train the cattle were moved, would not enable it to deliver the cattle at their destination within a reasonable time.
Error from District Court, Jefferson County; Cham Jones, Judge.
Action by O. W. Seay against J. M. Dickinson and H. U. Mudge, receivers of the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendants brings error. Affirmed.
R. J. Roberts, C. O. Blake, W. H. Moore, and J. E. Du Mars, all of El Reno, for plaintiffs in error.
Bridges & Vertrees, of Waurika, for defendant in error.
O. W. Seay recovered judgment in the district court of Jefferson county, against J. M. Dickinson, as receiver of the Chicago, Rock Island & Pacific Railway Company, for $125. The judgment was based on the verdict of a jury in a cause tried in that court, wherein O. W. Seay, as plaintiff, alleged that the railway company had negligently delayed the transportation of 46 head of cattle delivered to it at Oklahoma City, Okl., for shipment over its lines to the Witherspoon-McMullen Live Stock Commission Company at Kansas City, Mo. From a judgment overruling a motion for new trial, the receiver of the railway company appealed to this court.
It appears that the cattle were shipped in two cars, containing 23 head each, from Ryan, Okl., to Oklahoma City, Okl., on July 19, 1915, by O. W. Seay and Clyde Seay, under a live stock contract which had indorsed on it, "With Kansas City privileges." The cattle were consigned to the Witherspoon-McMullen Commission Company at Oklahoma City. Clyde Seay, one of the consignors, afterwards assigned his claim for damages against the railway company to O. W. Seay, who as plaintiff prosecuted this suit to judgment. The two carloads of cattle were loaded at Ryan at 7:10 p. m. July 19th, and unloaded at Oklahoma City for the market of July 20th. O. W. Seay, who accompanied the cattle to Oklahoma City, was not satisfied with the market there and availed himself of the privilege given under the live stock contract by delivering the cattle to the railway company for transportation to the consignee at Kansas City, Mo. They were billed out of Oklahoma City at the live-stock yards at 2:30 p. m. July 20th, and were unaccompanied by either of the consignors, moving en route to the Kansas City stockyards by way of El Reno, Okl., Caldwell, Herrington, and Topeka, Kan., arriving at the Kansas City stockyards on the morning of July 23d at about 7:30, after having been in possession of the railway company for about 65 hours.
Plaintiff's action is for damages caused by the alleged negligent delay of the railway company in transporting the cattle from Oklahoma City to Kansas City, alleging that the ordinary and reasonable time within which the cattle should have been transported between these points was from 30 to 36 hours.
The railway company contends that there was not sufficient proof of its negligent delay in transporting the cattle to their destination, and injury therefrom as a proximate result of such delay, to authorize the submission of these questions to the jury; and at the conclusion of the evidence it moved the court to instruct the jury to return a verdict in its favor, which motion the court overruled.
In line with its general contention as above outlined, the company contends that no competent evidence was offered in behalf of the plaintiff as to what was a reasonable time for moving the cattle from Ryan to Oklahoma City and from Oklahoma City to Kansas City.
While it is true that the cattle were first shipped from Ryan to Oklahoma City, the plaintiff does not claim any damages on account of this movement. The suit is for damages alleged to have been sustained by him on account of the negligent delay of the railway company in moving the cattle from Oklahoma City to Kansas City, and the evidence offered by the plaintiff as to the time required to move a shipment between these two points was substantially as follows:
The plaintiff testified that he had been engaged in the business of buying and shipping cattle for the past 30 years and had shipped over the Rock Island Railroad, principally, to Kansas City, ever since the railroad was built; that he shipped 15 or 20 cars of cattle a year during this time from Ryan, Okl., to Kansas City, Mo., and that the usual time required for a shipment to go from Ryan to Kansas City was from 28 to 35 hours, he having made it in less time than 28 hours; that Oklahoma City is nearer Kansas City than Ryan, it being something like 100 miles nearer, in his opinion.
Frank Witherspoon, Jr., testified that he had been engaged in the cattle business at Kansas City, Mo., and at Oklahoma City, Okl., since he was 18 years old; that he had been selling on the Kansas City market for the past 9 years, with the exception of about 18 months when he sold cattle at Oklahoma City; that he had shipped cattle from Oklahoma City to Kansas City; and that from 28 to 30 hours was the usual and customary time for shipments to come from Oklahoma City to Kansas City over the Rock Island lines.
We are of the opinion that this evidence was admissible. The plaintiff had for a long time been engaged in the business of buying and shipping cattle to the Kansas City market. He had shipped some 15 or 20 carloads a year over the Rock Island Railroad ever since it was built through the country where he operated; and, while the cattle involved in this suit were the first he had ever shipped from Okklahoma City to Kansas City, he testified as to the usual and customary time required to move a shipment from Ryan, which was generally the initial point of his shipments, to Kansas City, and further testified that Oklahoma City was nearer to Kansas City than Ryan by about 100 miles. The witness Witherspoon had been engaged in the cattle business at Kansas City and at Oklahoma City for nine years. He had shipped cattle from Oklahoma City to Kansas City over the Rock Island Railroad and knew the usual and customary time for the movement of shipments between these two points.
By reason of their past experience, these witnesses were qualified to testify; and the evidence was competent for the purpose of showing the usual and customary time for moving cattle from the point at which this shipment was made, Oklahoma City, to their destination at Kansas City. It was then the province of the jury to determine whether or not the much longer time of 65 hours taken by the railway company to transport the cattle here involved was reasonable or unreasonable, under all the proof submitted. St. Louis & S. F. R. Co. v. Peery, 40 Okl. 432, 138 P. 1027; Southern P. Ry. Co. v. Arnett, 111 F. 849, 50 C. C. A. 17; Ala. G. S. R. Co. v. McKenzie, 139 Ga. 410, 77 S.E. 647, 45 L. R. A. (N. S.) 18; Pecos, etc., R. Co. v. Dinwiddie (Tex. Civ. App.) 146 S.W. 280; St. L. & S. F. R. Co. v. Gunter, 44 Tex. Civ. App. 480, 99 S.W. 152; Texas, etc., R. Co. v. Crowley (Tex. Civ. App.) 86 S.W. 342; Kemendo v. Fruit Dispatch Co., 61 Tex. Civ. App. 631, 131 S.W. 73; Atchison, etc., R. Co. v. Davidson 60 Tex. Civ. App. 93, 127 S.W. 895; Texas, etc., R. Co. v. Byers (Tex. Civ. App.) 84 S.W. 1087.
In addition to the testimony of these two witnesses, C. L Rupert, superintendent of the Oklahoma Division of the Rock Island Railway from El Reno to Caldwell, Kan., testified that the Kansas City stock train which is due out of El Reno at 11 p. m. and into Kansas City at 4 p. m. on the second morning, thus requiring 29 hours to cover the distance between El Reno and Kansas City, was a reasonable time within which to run that train between those two points. W. H....
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