Karr v. Baltimore & O. R. Co, (No. 2654.)

CourtSupreme Court of West Virginia
Writing for the CourtLYNCH
Citation86 S.E. 43,76 W.Va. 526
PartiesKARR. v. BALTIMORE & O. R. CO.
Docket Number(No. 2654.)
Decision Date15 June 1915

86 S.E. 43
76 W.Va.
526

KARR.
v.
BALTIMORE & O. R. CO.

(No. 2654.)

Supreme Court of Appeals of West Virginia.

June 15, 1915.


(Syllabus by the Court.)

Error from Circuit Court, Mason County.

Action by J. J. Karr against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

[86 S.E. 44]

Rankin Wiley, of Point Pleasant, for plaintiff in error.

B. H. Blagg, of Point Pleasant, and Somerville & Somerville, of Grafton, for defendant in error.

LYNCH, J. 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 Stockyards 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 18th, 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 cars containing stock were transferred to the connecting carrier for delivery to consignees at the Union Stockyards on Herr's Island. But the train did not reach Willow Grove until 1:35 o'clock Monday morning, or 11 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 stockyards, 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 cannot 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 11 hours thereafter, it would have been delivered at the stockyards 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...

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8 practice notes
  • State Road Commission v. Bowling, No. 12759
    • United States
    • Supreme Court of West Virginia
    • March 4, 1969
    ...300, pt. 4 syl., 128 S.E. 389; Truman v. Wink-O Products Company, 96 W.Va. 256, 122 S.E. 745; Karr v. Baltimore & Ohio Railroad Co., 76 W.Va. 526, pt. 3 syl., 86 S.E. 43; Neil, Admr. v. West Virginia Timber Company, 75 W.Va. 502, pt. 4 syl., 84 S.E. 239; Stewart v. Parr, 74 W.Va. 327, p......
  • Erisman v. Chi., B. & Q. R. Co., No. 30945.
    • United States
    • United States State Supreme Court of Iowa
    • June 26, 1917
    ...City Ry. v. Ry., 110 Ark. 612, 163 S. W. 171. It may no longer defend by urging that the last carrier is to blame. Karr v. Ry. (W. Va.) 86 S. E. 43. The history of the amendment demonstrates that in enacting same Congress acted under certain conceptions. It has been held that Congress acted......
  • Erisman v. Chicago, Burlington & Quincy Railroad Co., 30945
    • United States
    • United States State Supreme Court of Iowa
    • June 26, 1917
    ...Co., (Ark.) 163 S.W. 171. It may no longer defend by urging that the last carrier is to blame. Karr v. Baltimore & O. R. Co., (W. Va.) 86 S.E. 43. IV. The history of the amendment demonstrates that, in enacting same, Congress acted under certain conceptions. It has been held that Congre......
  • Hayseeds, Inc. v. State Farm Fire & Cas., No. 16782
    • United States
    • Supreme Court of West Virginia
    • December 12, 1986
    ...mere inaptness of phraseology does not necessarily vitiate any one instruction." Syl. Pt. 3, Karr v. Baltimore & O.R. Co., 76 W.Va. 526, 86 S.E. 43 James R. Watson, Steptoe & Johnson, Charleston, for appellant. Raymond H. Yackel, Oliver & Yackel, Morgantown, James M. Casey,......
  • Request a trial to view additional results
8 cases
  • State Road Commission v. Bowling, No. 12759
    • United States
    • Supreme Court of West Virginia
    • March 4, 1969
    ...300, pt. 4 syl., 128 S.E. 389; Truman v. Wink-O Products Company, 96 W.Va. 256, 122 S.E. 745; Karr v. Baltimore & Ohio Railroad Co., 76 W.Va. 526, pt. 3 syl., 86 S.E. 43; Neil, Admr. v. West Virginia Timber Company, 75 W.Va. 502, pt. 4 syl., 84 S.E. 239; Stewart v. Parr, 74 W.Va. 327, p......
  • Erisman v. Chi., B. & Q. R. Co., No. 30945.
    • United States
    • United States State Supreme Court of Iowa
    • June 26, 1917
    ...City Ry. v. Ry., 110 Ark. 612, 163 S. W. 171. It may no longer defend by urging that the last carrier is to blame. Karr v. Ry. (W. Va.) 86 S. E. 43. The history of the amendment demonstrates that in enacting same Congress acted under certain conceptions. It has been held that Congress acted......
  • Erisman v. Chicago, Burlington & Quincy Railroad Co., 30945
    • United States
    • United States State Supreme Court of Iowa
    • June 26, 1917
    ...Co., (Ark.) 163 S.W. 171. It may no longer defend by urging that the last carrier is to blame. Karr v. Baltimore & O. R. Co., (W. Va.) 86 S.E. 43. IV. The history of the amendment demonstrates that, in enacting same, Congress acted under certain conceptions. It has been held that Congre......
  • Hayseeds, Inc. v. State Farm Fire & Cas., No. 16782
    • United States
    • Supreme Court of West Virginia
    • December 12, 1986
    ...mere inaptness of phraseology does not necessarily vitiate any one instruction." Syl. Pt. 3, Karr v. Baltimore & O.R. Co., 76 W.Va. 526, 86 S.E. 43 James R. Watson, Steptoe & Johnson, Charleston, for appellant. Raymond H. Yackel, Oliver & Yackel, Morgantown, James M. Casey,......
  • Request a trial to view additional results

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