Kent v. Chicago, B. & Q. R. Co.

• Decision Date: 03 May 1915
• Docket Number: No. 11234.,11234.
• Citation: 189 Mo. App. 424,176 S.W. 1105
• Parties: KENT et al. v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Court of Appeals

176 S.W. 1105

189 Mo. App. 424

KENT et al. v. CHICAGO, B. & Q. R. CO.

No. 11234.

Kansas City Court of Appeals, Missouri.

May 3, 1915.

Rehearing Denied May 31, 1915.

Appeal from Circuit Court, Gentry County; Wm. C. Ellison, Judge.

Action by Charles H. Kent and another, doing business as C. H. Kent & Son, against the Chicago, Burlington & Quincy Railroad Company. From judgment for plaintiffs, defendant appeals. Reversed.

H. J. Nelson, of St. Joseph, W. Peery, of Albany, and XI. G. Roberts, of St. Joseph, for appellant. Frank J. McCaslin, of Stanberry, and James F. Wood, of Kansas City, for respondents.

TRIMBLE, J.

This is a suit for damages by reason of alleged negligent delay, occurring in the course of the transportation of five car loads of cattle over appellant's railway system from Worth, Mo., to Chicago, Ill. The town of Worth is on a branch road which connects with the main line at Chariton, Iowa. When shipments originating on the branch reach Chariton, they are picked up by trains on the main line and carried forward to Galesburg, Ill., another division point, and from thence they are taken on to Chicago. At Galesburg appellant maintains stock pens equipped for feeding, watering, and resting cattle for five hours, under the federal 28-hour law. The cattle were loaded at Worth and started on their journey at noon of Saturday, July 8, 1911, respondents intending that they should reach the Chicago market on the morning of Monday, July 10th. The cattle reached there in ample time for, and were sold on, the market for which they were intended. There is no complaint on that score. The cattle were delivered to the consignee at point of destination in Chicago at 4:15 on the morning of July 10th. This was admitted, and it was also admitted that the time consumed in the transportation and delivery of the cattle from Worth to Chicago was the usual and ordinary time for that service, allowing and including five hours for feed, rest, and water at Galesburg in compliance with the federal law, which the cattle got at that point.

The theory and basis of respondents' complaint is that from their years of experience as shippers they knew that if the cattle were transported with reasonable care and diligence, they would reach Galesburg at from 6 to 9 o'clock Sunday morning, and would there, at that time of the day, receive feed and water and obtain 11 hours' freedom from the cars, and be thoroughly rested for their remaining journey to Chicago, thereby presenting a better appearance at said last-named point Monday morning, and, by reason of having gone without food or water from the morning before, they would be enabled to take on a better fill. Respondents say that, having this idea in mind, they shipped the cattle from Worth to Chicago, expecting to get the benefit of an early feed and water on Sunday morning and a subsequent rest of 11 hours prior to the sending forward of the cattle on to Chicago in time to reach there early Monday morning, but that, owing to a delay arising between the division points of Chariton, Iowa, and Galesburg, Ill., the cattle did not reach Galesburg until 10 or 11 o'clock Sunday, and were not unloaded until 12:30 which was in the middle and heat of the day, and perhaps 5½ hours later than usual.

It is very difficult to gather from respondents' evidence just what they claim the damage arises from, whether from the fact that the cattle were fed and watered at Galesburg so much nearer the time of their watering at Chicago that they would not take on the proper fill before gong on the market, or whether it is also claimed that the cattle shrank unduly by reason of being in the cars and on the road, instead of resting quietly in the pens during this 5½ hours. Certain it is that the inability of the cattle to fill constitutes by far the greater portion of the damages claimed. Respondents themselves attended to watering the cattle at Galesburg, and could have easily regulated the supply, as it came from a hydrant under their control. So that, if the inability' to properly fill at Chicago arose from getting too much water at noon the day before at Galesburg, it would seem at first blush that respondents could have prevented that if they had seen fit to do so. But there is evidence that if a scanty or less measure of water had been given them, they would have suffered from the heat, and fretted so much as to cause an equal or greater loss than if they were given all the water they got. There is also evidence that fat cattle, standing and being jostled in the cars in hot weather, shrink more than when quietly resting in the pens, and that as these cattle were in the cars for five hours, when they would have been resting in the pens had there been no delay in reaching Galesburg, they shrank more than necessary and had a stale appearance when placed upon the market. So that, giving to respondents' evidence its fullest effect, we cannot say the loss arose solely because the cattle got too much water at Galesburg, and that respondents should be denied recovery upon the ground that they watered the cattle themselves and could have given them less.

This, however, is a minor objection to respondents' recovery. The question still remains whether appellant is liable for any delay in reaching Galesburg. There was no delay in going from Worth, Mo., to Chariton nor any in going from Galesburg to Chicago. The only delay claimed was in going from Chariton to Galesburg. The evidence as to delay is undoubtedly vague and somewhat confused. Respondents admit they had a good run to Chariton. In certain portions of their testimony they admit that the regular schedule and running time of trains between Chariton and Galesburg was...