Ficklin v. Wabash R. Co.

• Decision Date: 08 January 1906
• Citation: 117 Mo. App. 211,93 S.W. 861
• Parties: FICKLIN v. WABASH R. CO.
• Court: Missouri Court of Appeals

93 S.W. 861

117 Mo. App. 211

FICKLIN v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

January 8, 1906.

Rehearing Denied March 3, 1906.

1. CARRIERS — CATTLE SHIPMENT — DELAY — NEGLIGENCE—BURDEN OF PROOF.

Where, in an action against a carrier for delay in shipping plaintiff's cattle, plaintiff founded his cause of action solely on defendant's negligence in furnishing cars and in transportation, the burden was on plaintiff to show that defendant was negligent in fact either in furnishing the cars or in the transportation, and that such negligence was the proximate cause of the damage suffered.

2. TRIAL—INSTRUCTIONS—CONFLICT.

An instruction that plaintiff, a shipper of cattle, was not entitled to recover for defendant's failure to furnish cars for the shipment of plaintiff's stock "at any specified time," did not conflict with an instruction authorizing plaintiff to recover if defendant failed to furnish cars ordered within a reasonable time.

3. CARRIERS—CATTLE SHIPMENT—NEGLIGENCE —EVIDENCE—QUESTION FOR JURY.

In an action for delay in the transportation of plaintiff's cattle, evidence that defendant's agent assured plaintiff that cars were at hand, knowing that plaintiff would act on such assurance and drive his cattle to the pens for shipment, coupled with the facts that no cars were available, and that the forwarding of the shipment was delayed thereby, was evidence of the carrier's negligence sufficient to authorize submission of such issue to the jury.

4. SAME — DELAY IN TRANSPORTATION — EVIDENCE—SUFFICIENCY.

Where the time ordinarily consumed in the entire transportation of stock between certain points was not more than six hours, evidence that 20 hours was consumed in such transportation was sufficient to sustain a finding of negligence on the part of the carrier, in the absence of proof explaining a portion of such delay.

5. SAME — SHIPPER'S CONTRACT — LIMITATION OF LIABILITY.

A carrier cannot limit his liability for damages resulting from his negligence by contract with the shipper.

6. SAME—PROVISION OF CONTRACT—EFFECT.

A carrier's contract for the transportation of certain cattle stated that their "estimated weight was 110,400 and their value $50 a head; that in consideration of a reduced freight rate, it was agreed that the carrier should not be liable for loss or injury to any of the animals in any amount in excess of the valuation thereof as stated by the shipper. When weighed and delivered to the purchaser the cattle weighed 113,720 pounds, and brought in gross a few cents over $50 a head. Held, that such provisions did not prevent the shipper from recovering damages from shrinkage and loss of market caused by the carrier's negligent delay of the cattle; the damages claimed being within the limits of the agreement.

Appeal from Circuit Court, Gentry County; W. C. Ellison, Judge.

Action by Thomas Ficklin against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. S. Grover, for appellant. Peery, Lyons & Wood, for respondent.

JOHNSON, J.

Action to recover damages from a common carrier on account of delay in the carriage of live stock to market. Plaintiff had judgment in the sum of $300 and defendant appealed.

Material facts appearing from the evidence introduced by plaintiff are as follows: On December 12, 1903, plaintiff, a live stock feeder and shipper, applied through his son to defendant's agent at Stanberry, Mo., for five cars, in which to ship 84 head of fat cattle to market, stating that the cars were needed for loading on the following Monday morning, the 14th. The son was not certain of the destination of the shipment and because of that fact, the agent did not then enter the order. The following day, the agent was notified that the market at St. Joseph was the one selected, and thereupon received the order, and agreed to have the cars ready for loading at the time required. The following morning, plaintiff telephoned from his farm, four miles distant from Stanberry, to the agent inquiring about the cars, and was informed that they were ready. Plaintiff then sought information relative to the bedding that should be brought for the cattle. The agent, after consulting with others in the office, informed plaintiff that the cars had not yet arrived, but would be there in 20 minutes, and plaintiff, without objection from the agent, expressed his purpose to drive the cattle in at once for shipment. He arrived with them at 3 or 4 o'clock in the afternoon and, with the consent of the agent, put them in defendant's shipping pens. Defendant had cars of its own available for the shipment, but the agent informed plaintiff that the rules required the use of no other cars than those of the Chicago Great Western Railroad in shipment of stock to St. Joseph, and that the cars ordered had not arrived. Had they been on hand, the cattle could have been loaded in time to leave on a train that departed from Stanberry at about 6 o'clock that evening. The cars were not provided until after the leaving of that train. The cattle were loaded with the exception of one steer, that escaped, and started on their journey at about 10 o'clock that night. Defendant hauled them a distance of nine miles to its junction with the Chicago Great Western road at Conception, and there delivered the cars to that carrier. They did not reach St. Joseph until 8:30 the next morning, and then, for some reason not shown, were not switched to the unloading chutes until about 11 o'clock. It thus appears that about 20 hours elapsed from the time the cattle were received at defendant's pens in Stanberry to that of their delivery and that 12 or 13 hours were consumed in the transportation. The time ordinarily required is about 6 hours. It was plaintiff's purpose, known to defendant, to have his cattle on sale at the stockyards during the best of Tuesday's market. When the cattle arrived, the market for that day was practically over. The market hours are from 8:30 a. m. to 3 p. m., but on this particular day the buyers had filled their orders...