German v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 09 November 1925
• Docket Number: No. 15110.,15110.
• Citation: 276 S.W. 1041
• Court: Missouri Court of Appeals
• Parties: GERMAN v. CHICAGO, M. & ST. P. RY. CO. et al.

276 S.W. 1041

GERMAN v. CHICAGO, M. & ST. P. RY. CO. et al.

No. 15110.

Kansas City Court of Appeals. Missouri.

November 9, 1925.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

"Not to be officially published."

Suit by William German against the Chicago, Milwaukee & St. Paul Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Fred S. Hudson, of Kansas City, for appellants.

Lesley P. Robinson, of Trenton, for respondent.

BLAND, J.

Plaintiff filed before a justice of the peace in Grundy county a statement, the material parts of which read as follows:

"Plaintiff says that on the 25th day of July, 1920, he delivered to defendants at their station at Galt, Mo., one carload of hogs, in number eighty-two (82) head, and that said defendants received and undertook and contracted for hire to ship said hogs to the stockyards at Kansas City, Mo.; that defendants agreed to place a car on its said track on the said 25th day of July, 1020, for the shipment of said hogs, but carelessly and negligently failed and refused to deliver said car until the 1st day of August, 1920."

The statement further alleges that, by reason of the failure and delay of defendants to deliver said car and to ship said hogs as agreed, plaintiff was required to expend money for extra feed, labor, and care of the hogs, and that he sustained a loss by reason of a falling market; that in all he was damaged in the sum of $195. In the circuit court the cause was tried by the court without the aid of a jury, resulting in a judgment in favor of plaintiff in the sum of $195, and defendant has appealed. There were no findings of fact or declarations of law requested except a demurrer to the evidence asked by the defendants.

Plaintiff testified that on the 17th or 18th of July, 1920, he ordered a car for the shipment of a carload of hogs from Galt, Mo., to Kansas City, Mo.; that the car was ordered for Sunday, July 25th, so that it could be loaded and the stock shipped for Monday morning's Kansas City market. The car was ordered from the defendants' agent at Gait. When plaintiff ordered the car the agent said, "All right." Plaintiff took the hogs from the country to the stockyards of the defendants at Galt on the 25th. The car was not delivered until August 1st. The hogs were kept in the yards until that time. He testified that he was not informed that no car would be furnished or that a shortage of cars would cause a delay in furnishing a car. When the car arrived it appeared as though it had not been used for a long time; corn had grown in it to the height of five or six inches. It appeared not to have been used for at least five or six weeks. The shipping days of stock from Galt to Kansas City were Sunday, Monday, Tuesday, and Wednesday. If the car was not furnished on any of these days it would not make any difference if it were not delivered upon any of the other days of the week. This was the first trouble that plaintiff had had in getting cars.

Defendants put upon the stand their assistant superintendent of transportation, who testified that from April 1 to about September 1, 1920, there was an outlaw strike of switchmen, beginning in the city of Chicago, and followed by strikes of switchmen at Kansas City, Mo., and other places; that in that time defendants had great difficulty in moving all classes of freight; that on account of violence and intimidation it was impossible to secure experienced labor; that on account of congestion at the larger terminals it was impossible to unload shipments with dispatch with such emergency forces as could be employed, resulting in a great accumulation of loaded cars, which necessarily restricted the number of empty live stock cars that could be furnished' during that time, and hindered the movement of cars generally; that only 30 per cent. of the stock cars requested on defendants' line could be furnished, and defendants were able to fill only 45 per cent. of the requests made on the Kansas City division, which included Galt.

The chief dispatcher of the Kansas City division testified to the same effect, and, further, that defendants had on hand only 208 cars out of 494 ordered between July 25 and August 1st along the Kansas City division; that on the 25th of July, 1920, there were three cars ordered at Galt for Monday, two for sheep and one for hogs; that orders for ears were filled in rotation, according to the time at which they were ordered; that the outlaw strike in Chicago had no effect on the different towns with the "exception of causing some congestion in business that could not be taken in Chicago that had to be set out along the line"; that if orders were not filled they would be carried over to the next day and constituted a part of the unfilled orders of that day; that if a shipper failed to get his car the first day, the agent would order one...