Gillespie v. Louisville & N. R. Co.

• Decision Date: 06 June 1910
• Citation: 129 S.W. 277,144 Mo. App. 508
• Court: Missouri Court of Appeals
• Parties: GILLESPIE et al. v. LOUISVILLE & N. R. CO. et al.

129 S.W. 277

144 Mo. App. 508

GILLESPIE et al. v. LOUISVILLE & N. R. CO. et al.

Springfield Court of Appeals. Missouri.

June 6, 1910.

1. EVIDENCE (§ 13)—JUDICIAL NOTICE—PNEUMONIA.

The court does not know judicially that pneumonia develops in jacks within 24 or 48 hours after exposure.

2. TRIAL (§ 178)—PEREMPTORY INSTRUCTIONS —INFERENCES FROM EVIDENCE.

On a motion for peremptory instructions for defendant, the court must give plaintiff's testimony the benefit of all reasonable inferences that could be drawn therefrom.

3. CARRIERS (§ 213)—LIVE STOCK—DELAY— PROXIMATE CAUSE.

Where a carrier is guilty of negligent delay in shipping cattle, though the negligent act must be the proximate cause of the injury to hold the carrier responsible, yet, if the injury follows as a direct consequence of the negligent act, it cannot be said that the carrier is not responsible because the particular injury could not have been anticipated.

4. CARRIERS (§ 228) — NEGLIGENT DELAY — LIVE STOCK—PNEUMONIA—EVIDENCE.

In an action for damages to jacks resulting from contracting pneumonia, evidence held insufficient to show that the disease was contracted because of the negligent delay of the carrier or while the jacks were being transported.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by J. H. Gillespie and others, a copartnership, against the Louisville & Nashville Railroad Company and others. From a judgment overruling a motion to set aside a voluntary nonsuit, plaintiffs appeal. Affirmed.

E. H. Hatcher, C. P. Hatcher, Chilton Atkinson, and Wm. Baird (Seddon & Holland, of counsel), for appellants. Bryan & Christie and H. R. Small, for respondent Louisville & Nashville R. Co. Watts, Williams & Dines, for other respondents.

GRAY, J.

Plaintiffs allege in their petition that they were a copartnership doing business under the firm name and style of "J. H. Gillespie & Sons"; that the defendants were railroad corporations; that on the 21st day of February, 1903, they shipped via the respondent Louisville & Nashville Railroad Company, from Columbia, Tenn., to Kansas City, Mo., 14 jacks and 1 horse; that said stock, while being shipped, passed into the control of the respondents Terminal Railroad Association of St. Louis and the Wabash Railroad Company; that by reason of the combined and joint negligence of the defendants the animals were permitted to contract a disease, from which a number of them died and others were damaged, and for which judgment was demanded. The petition was filed in the office of the clerk of the circuit court of St. Louis on the 3d day of September, 1904, and in due time all the respondents answered. At the conclusion of the testimony, each of the defendants offered, and the court gave, peremptory instructions to the jury to find for the defendants, upon the giving of which the plaintiffs excepted, and by permission of court took a nonsuit with leave to file a motion to set the same aside. In due time the motion was filed, and was, by the court, overruled, and the plaintiffs appealed to the Supreme Court. Under the recent act of the Legislature increasing the jurisdiction of the courts of appeals, the Supreme Court transferred the case to the St. Louis of Appeals, and that court transferred the cause here.

The testimony in behalf of the plaintiffs shows that plaintiffs on the 21st day of February, 1903, loaded the animals in a "Palace Car" at Columbia, Tenn., intending to ship them to Kansas City, Mo.; that in due time the car containing the animals arrived at East St. Louis, and was delivered to the Terminal Company about midnight, February 22d, and was left standing on the tracks at a point about 200 yards from the Mississippi river, until about 2 o'clock in the afternoon of that day, when it was taken across the Mississippi river and delivered to the Wabash Railroad Company, and remained on the west bank of the river until about 9 p. m., when it was placed in a train and started for Kansas City. The jacks were strong and healthy when loaded at Columbia, Tenn., and remained apparently in that condition until after they had been transferred to the Wabash Railroad Company, when it was noticed that they stopped eating and braying. The evidence shows that, as long as the animals eat and bray, they are in a healthy condition. During the time they were standing on the tracks of the Wabash Railroad Company, they commenced to cough, quit eating, and did not bray very much. When the car arrived in Kansas City, nearly all of the jacks were sick. They were immediately taken from the car and removed to a barn, and commenced to die with pneumonia, and the result was that seven died and the others were so injured by the disease that plaintiffs only realized about $700 for their car load of jacks.

The defendants filed separate answers pleading different contracts of shipment, special rates, releases, etc.; but, in view of the fact that we have come to the conclusion that plaintiffs were not entitled to recover on the merits, it will not be necessary to further notice the special defenses.

The testimony shows that the weather in Columbia, Tenn., was as cold at the time the jacks were shipped, as it was while they were on the car in St. Louis; that the palace car is a special car provided for shipping stock. It is provided with stalls so that the stock can be fed, watered, and bedded in the same manner as if standing in...