Karr v. Baltimore
| Decision Date | 15 June 1915 |
| Citation | 76 W.Va. 526 |
| Court | West Virginia Supreme Court |
| Parties | Karr v. Baltimore & Ohio Railroad Co. |
1. Commerce Interstate Shipment Operation of Hepburn Act Pleading.
The act of Congress known as the Hepburn act, imposing liability upon the initial carrier, when engaged in interstate commerce, "for any loss, damage or injury'' to an interstate shipment "caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose lines it may pass'7, supersedes the common law rule regarding negligent delay in the transportation of live stock; and its provisions may be invoked, when the proof shows its applicability, though not averred in any pleading filed in the case. (p. 528).
2. Evidence Declarations of Agent Admissibility.
Proof of the acts and declarations of an agent, made in the course ■ of employment and relating to transactions in which he is engaged, is competent evidence against the principal, (p. 530).
3. Trial Instructions Inapt Phraseology Construing Together.
If when considered together instructions state the law of the case, and are not palpably inconsistent or misleading, mere inaptness of phraseology does not necessarily vitiate any one instruction, (p. 529).
Error to Circuit Court, Mason County.
Action by J. J. Karr against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Rankin Wiley, for plaintiff in error.
B. H. Blagg and Somerville & Somerville, for defendant in error.
As grounds for reversal of a judgment recovered by plaintiff in assumpsit for damages occasioned by delay in the transportation of 39 cattle and 19 hogs from Mason City to Pittsburgh, a distance of 225 miles, defendant assigns insufficiency of the evidence and misdirection of the jury.
The shipment was consigned to commission merchants for sale at the Union Stock Yards on Monday, November 20, 1911, that being the only regular market day for cattle that week. The train carrying the stock was the regular weekly stock train operated by defendant between Kenova and Pittsburgh. It left Mason City at 9 o'clock on Saturday evening, November 18, and was due to arrive at defendant's freight yards located at Willow Grove in or near Pittsburgh from 2 to 4 o'clock the following Sunday afternoon, whence ears containing stock were transferred to the connecting carrier for delivery to consignees at the Union Stock Yards on Herr's Island. But the train did not reach Willow Grove until 1.35 o'clock Monday morning, or eleven hours late; and, though promptly delivered to the connecting carrier, plaintiff's stock did not reach its destination until after the close of the market on that day. Plaintiff, thus being deprived of the benefit of the regular market, was compelled to sell his cattle the next day upon an irregular market at a sacrifice in price, and upon a reduced weight caused by lack of the usual opportunity to unload, feed, water and rest the stock.
This extraordinary delay defendant did not attempt to explain, but did endeavor to exonerate itself from liability by proof tending to show that, because of the congested condition, of the market due to an unusual number of stock for sale on that day, and the absence of a sufficient opportunity to transfer and unload the cattle and hogs and find pens for them at the stock yards, the loss, if any, suffered by plaintiff was not due to the lateness of the arrival at Willow Grove, but to other causes not within defendant's control.
Being in the nature of a plea of confession and avoidance, this defense can not avail defendant, for two reasons. First, the delay in the arrival of the shipment at defendant's terminal was the primal cause of the loss sustained by plaintiff. Had the shipment arrived there on or near the usual hour, and not eleven hours thereafter, it would have been delivered at the stock yard relatively earlier, for the reason that stock intended for sale on Monday was transferred to the market place and unloaded in the order of its arrival at the Pittsburgh junction of the two railroads, as each Initial carrier reports to the terminal carrier the time of the arrival and placement of each stock train at the junction, and "whatever train reports first is placed here to unload next". Other stock shipments arriving within the eleven-hour delay period reached the stock yards and were sold on the Monday market. Second, as defendant was a common carrier engaged in interstate commerce, and the stock an interstate shipment, the initial carrier was subject to the provisions of the Hepburn act, imposing liability upon the intial carrier "for any loss, damage or injury to such property caused by it, or by any common carrier, railroad or transportation company to which such property may be delivered or over whose lines it may pass; and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the...
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