Guinn v. Wabash, St. Louis & Pacific Ry. Co.

• Citation: 20 Mo.App. 453
• Parties: JAMES T. GUINN, Respondent, v. WABASH, ST. LOUIS & PACIFIC RAILWAY CO., Appellant.
• Decision Date: 25 January 1886
• Court: Court of Appeals of Kansas

20 Mo.App. 453

JAMES T. GUINN, Respondent, v. WABASH, ST. LOUIS & PACIFIC RAILWAY CO., Appellant.

Court of Appeals of Missouri, Kansas City.

January 25, 1886

APPEAL from Schuyler Circuit Court, HON. ANDREW ELLISON, Judge.

Affirmed.

Statement of case by the court.

This is an action to recover damages against the defendant--a railroad corporation--for delay in shipping certain hogs, the property of plaintiff. The petition, after making the usual averments as to defendant's office as a common carrier alleged that the defendant was engaged as such carrier in transporting freight and live stock between its station at Lancaster, Missouri, and the city of Chicago, in Illinois that on or about the twenty-fifth day of November, 1881 plaintiff directed the agent of defendant at said station to furnish him with four cars in which to ship hogs to Chicago Illinois, on the twenty-seventh day of that month, which cars, the defendant's agent in the regular line of his duty, agreed to furnish at that date. " Plaintiff further states that on or about said twenty-seventh day of November, 1881, he delivered in defendant's stock pens at Lancaster, Missouri, four car loads of hogs, which were received by the agent of defendant in charge of its business at Lancaster, at that time, with directions that they would be shipped without unreasonable delay, to Chicago, Illinois; that said defendant on said day, and for eight days thereafter, failed and refused to ship said hogs without unreasonable delay, but on the contrary said hogs were permitted to remain in the defendant's stock pens at Lancaster, Missouri, for an unreasonable time, to-wit: about eight days after they were delivered to defendant."

The petition then assigns as damages resulting from said detention a shrinkage in weight of 2,360 pounds, for which $141.90 damages are claimed; a decline in the market value of ten per cent. at Chicago, amounting to $60.00 is claimed; feeding the hogs in the pens while detained at Lancaster, $15.00; and a decrease in the marketable value of the hogs on account of shrinkage, $127.00; making in the aggregate $343.90.

The answer alleged that plaintiff notified the agent that he would want the cars on the twenty-ninth day of November, and that said " agent then informed plaintiff's agent that he would notify the proper officer of the defendant corporation of plaintiff's request, and accordingly did so inform said officer. That there were then other orders for stock cars in advance of plaintiff's, which had to be filled before plaintiff could be supplied.

That on the fifth day of November, 1881, one span of the railway bridge across the Mississippi river at Keokuk, Iowa, was broken down by a passing steamboat, so that defendant could not cross its trains over said river there, and was thereby compelled to run them by a circuitous route over other lines of railway to another point on said river. That such breakage of said bridge caused an accumulation of freight on its line, and delayed the movement of its trains.

That during the month of November, 1881, its track was washed out and overflowed by unprecedented floods of high water, which also embarrassed and hindered the movements of its trains.

That it furnished plaintiff one stock car on the twenty-ninth of November, 1881, two cars on December 1, 1881, and one car on December 4, 1881, which was as soon as it could possibly do so, for the reasons above set forth, and which it averred were all the cars ordered by plaintiff for shipment of his live stock from Lancaster to Chicago, between the twenty-fifth of November and the fourth of December, 1881."

The reply tendered the general issue.

There was evidence tending to support the issues on either side. The plaintiff asked no instructions, the issues being submitted to the court sitting as a jury. On behalf of defendant the court gave the following declarations of law:

" 4. That upon the pleadings and the evidence in this cause, plaintiff cannot recover any damages on account of any decline in the market value of the stock between the time plaintiff ordered cars at Lancaster, Missouri, and their arrival at Chicago."

" 5. The jury are instructed as to damages, if they find for plaintiff, that if they believe from the evidence that the loss by shrinkage in weight of plaintiff's stock, or any of them, was occasioned by insufficient feeding or want of proper care and attention on the part of plaintiff or the persons having charge of them, or by the effect of wet, cold, or muddy weather, they will not include any such loss in their assessment of damages."

" 6. The court instructs the jury that if they find from the evidence that plaintiff directed defendant's station agent at Lancaster, Missouri, to furnish plaintiff cars for the shipment of live stock from Lancaster, Missouri, to Chicago, on the ____ day of ____, 1881, that it was the duty of defendant to furnish said cars on said day, or so soon thereafter as defendant could reasonably do so after first supplying previous demands of other shippers; and that in determining whether or not defendant was negligent in furnishing said cars, the jury must consider all the circumstances of the case. If they find that the bridge over the Mississippi river was down, and that defendant was compelled to run its trains over the lines of other railroad companies as irregular trains, and subject to the orders of such companies, and were thus embarrassed and delayed in the movement of their trains at the time plaintiff complains, then said delay offered a sufficient defence to plaintiff's action."

" 7. The court instructs the jury that if they believe from the evidence that defendant's failure to furnish cars on the day demanded by plaintiff, was in consequence of the breakage in the railroad bridge at Keokuk, over which defendant crossed its trains, and that the falling of said bridge subjected the defendant to delays in moving its trains eastward and westward, they will find for the defendant, provided, they find it used ordinary diligence to furnish said cars as soon as it could reasonably do so in their proper turn or order. And plaintiff is entitled to no damages for delay until after a reasonable time has elapsed as set forth in the foregoing instructions."

" 8. Defendant cannot be held liable for negligence in furnishing cars, if it were prevented from doing so by unavoidable accident, such as the breaking of a bridge by a steamer being thrown against it without defendant's fault, and defendant is excused from any delay caused by any such obstacle."

" 9. If the jury find from the evidence that there was unreasonable delay in furnishing plaintiff's cars for the shipment of his stock, considering all the circumstances of the case, then plaintiff can only recover what would then seem to be the natural and immediate consequence of such delay. These are the delays to which plaintiff was subjected, and the necessary expenses in feeding and taking care of the same, and this would not include any decline in market prices or shrinkage in the weight of plaintiff's stock, unless it appears from the evidence that these effects were caused directly from the act of defendant."

" 10. The court instructs the jury, that it is the duty of a railroad company to distribute its cars among the different stations on its lines of road, in proportion to the business ordinarily done, so that all freight offered at different stations may be shipped without unreasonable delay, and no one station should be furnished with cars to the prejudice of another."

The court refused other instructions asked by defendant, which are too immaterial for attention.

The court found the issues for plaintiff, and assessed his damages at one hundred and seventy dollars. The defendant has...