Howell v. Hines

• Decision Date: 09 January 1922
• Docket Number: No. 13812.,13812.
• Citation: Howell v. Hines, 236 S.W. 886 (Mo. App. 1922)
• Parties: HOWELL et al. v. HINES, Director General of Railroads.
• Court: Missouri Court of Appeals

236 S.W. 886

HOWELL et al. v. HINES, Director General of Railroads.

No. 13812.

Kansas City Court of Appeals. Missouri.

January 9, 1922.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially published."

Action by Murry Howell and others against Walker D. Hines, Director General of Railroads in the United States. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

See, also, 227 S. W. 619; Howell v. Davis, 236 S. W. 889.

McBaine, Clark & Rollins and Jas. E. Boggs, all of Columbia, for appellant.

N. T. Gentry, of Columbia, for respondents.

TRIMBLE, P. J.

This is an action based upon a negligent and unreasonable failure after notice to furnish a car for the shipment of 93 head of fat hogs belonging to plaintiff and one Akeman over the Wabash Railway (then in the hands of the Director General), from Hallsville, Mo., to National Stockyards, at East St. Louis, After the institution of the suit Akeman died, and his administrators were substituted as party plaintiffs.

Upon a trial the jury returned a verdict for $112 in plaintiffs' favor, and from a judgment rendered thereon the defendant appealed.

On May 9, 1916, plaintiff Howell, in the station at Hallsvilld, orally notified the agent there to furnish a car for the shipment of said hogs, to be used and shipment made on the following Monday, May 12th. The agent replied, "All right." Whether the agent made any entry of such order in the "order book" Howell did not know, as he did not notice.

On the morning of May 12th Howell brought the hogs to Hallsville and put them in the stockpens. Hallsville is on the Columbia branch of the Wabash Railroad, and 30 miles from Moberly, the last-named place being a distributing point for cars on said railroad. Three trains daily came to Hallsvile from the direction of Moberly, one at 7 a. m., one at 3:40 p. m., and a third at 7 p. m. Trains left Hallsville, going in the direction the shipment would take, at 11:15 a. m. and 1:37 p. m. every day. No car for plaintiffs' hogs was there, however, and the agent told Howell he was expecting a car on the trains that would arrive during the day. None came, however, and the hogs had to be held over until the next day. The keeping of them in the yards caused an extra shrinkage and gave them a stale appearance, as well as necessitating an extra expense of $10 for feed.

The first point defendant makes is that his demurrer to the evidence should have been sustained, for the reason that no evidence whatever was introduced tending to show negligence in the failure to have the car there. It was shown in evidence that the agent did not know a car would not be there until after the hogs were in the pen, and that he then did all he could to obtain a car, but did not succeed in getting one there until next day. It was also further shown that 24 hours was the usual time in which cars were furnished after a request therefor was made. The suit was not based on a breach of a special contract to furnish the car on Monday, nor was it, nor could it have been, based on a violation of section 9913, R. S. 1919. It was a common-law action for damages based on defendant's negligence in failing to furnish a car within a reasonable time after notice. Raper v. Lusk, 192 Mo. App. 378, 382, 181 S. W. 1032. When a plaintiff bottoms his case on negligence, the burden is on him to show it, or to at least introduce evidence from which negligence can reasonably be inferred. Ficklin v. Wabash R. Co., 117 Mo. App. 211, 216, 93 S. W. 861; Huston Bros. v. Wabash R. Co., 63 Mo. App. 671, 676; McMickle v. Wabash R. Co., 209 S. W. 611; New Orleans, etc., Co. v. Harris, 247 U. S. 367, 38 Sup. Ct. 535, 62 L. Ed. 1167. Was there evidence from which the jury could reasonably infer that the failure to furnish a car within three days after notice was negligent and unreasonable? It may be contended that, as Moberly was a car distributing point only 30 miles away, and as 24 hours' notice was usually sufficient to obtain a car at Hallsvilie, and as a car was obtained the next day after the day set for shipment, i. e., the agent after he got busy was enabled to get one in 24 hours, therefore this was enough to enable the jury to find that the failure to furnish " a car 72 hours after notice was the result of negligence. But it is not shown that it was the efforts of the agent put forth on Monday that secured a car within the 24 hours thereafter. So far as the evidence shows, the car that came on Tuesday may have been the first car obtainable in response to the notice plaintiff gave. Whether a car could have been obtained earlier would seem to depend upon the particular facts and circumstances existing at the time and following the giving of the notice, and not one of these were shown. We cannot say that, as a matter of law, a failure to furnish a car within 72 hours, or three days, was unreasonable or negligent. The statute (section 9913) allows four days. Nor is the matter of furnishing a car for shipment precisely analogous to, or governed by the same circumstances, as the transportation of a shipment to its destination after it has been accepted.

When a shipment has been accepted for transportation, the carrier is in duty bound to forward that shipment with reasonable dispatch, and cannot unreasonably delay it in order to be able to accept and carry other business offered it. But, in the matter of furnishing cars for shipment:

"In the absence of a special contract to furnish cars on a particular date, a railroad company, engaged as a common carrier in the shipment of any particular class of articles or property, is bound to furnish suitable cars for such shipment, upon reasonable notice, whenever it can do so by the exercise of reasonable diligence and without jeopardy to its business as such common carrier. Ayres v. Railway Co., cited; Railway Co. v. Nicholson, 61 Tex....