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

• Decision Date: 15 May 1911
• Court: Missouri Court of Appeals
• Parties: LAY v. CHICAGO, B. & Q. R. CO.

138 S.W. 884

157 Mo. App. 467

LAY v. CHICAGO, B. & Q. R. CO.

Kansas City Court of Appeals. Missouri.

May 15, 1911.

Rehearing Denied June 28, 1911.

1. CARRIERS (§ 224) — CONNECTING CARRIERS — TRANSPORTATION OF LIVE STOCK — ACTION — VENUE.

Rev. St. 1909, § 5446, provides that in any suit for loss or injury to property transported plaintiff may join as defendants the original carrier and all connecting carriers, and recover from the carrier through whose negligence the loss was sustained, and may prosecute such action in any county in which a suit may be maintained against either of the carriers. Held that, where defendant B. Company transported cattle as a connecting carrier, plaintiff was entitled to sue in the county from which the cattle were shipped, and in which the initial carrier did business, though defendant B. Company's railroad did not pass through that county, and it had no place of business there, and was served in another county.

2. EVIDENCE (§ 543) — EXPERTS — QUALIFICATIONS — MARKET VALUE.

In an action against a carrier for delay in transporting cattle to market, plaintiff, having testified to 20 years' experience in shipping and selling cattle and not having been cross-examined as to his qualifications, was properly permitted to testify as an expert as to the market price of cattle to prove loss by the delay.

3. WITNESSES (§ 255) — REFRESHING RECOLLECTION — MARKET PRICES — TRADE JOURNAL.

On an issue as to the market price of cattle on specified days, a trade journal published at a particular market, and purporting to give correct daily market prices of stock sold there, was admissible to refresh the memory of a witness testifying as to such prices.

4. CARRIERS (§ 228) — TRANSPORTATION OF LIVE STOCK — NEGLIGENCE — DELAY.

Where a shipper of live stock alleged negligent delay in transporting cattle, the burden was on him, not only to show delay, but delay caused by negligence.

5. CARRIERS (§ 213) — TRANSPORTATION OF LIVE STOCK — DELAY — DUTY OF CARRIER.

Though a carrier of live stock is not bound to transport the same for any special market or by the utmost dispatch, it is bound to carry the stock by some train in such time as would obtain arrival within a reasonable time.

6. CARRIERS (§ 228) — TRANSPORTATION OF LIVE STOCK — DELAY — NEGLIGENCE — EVIDENCE.

In an action against a carrier for negligent delay in transporting live stock, evidence held sufficient to support a finding that the delay was caused by the carrier's negligence.

7. CARRIERS (§ 213) — LIVE STOCK — TRANSPORTATION — DELAY — STOPPING FOR FEED AND REST.

Stoppage of a shipment of cattle for feed and rest required by Interstate Commerce Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1909, p. 1178), is no defense to an action for damages resulting from negligent delay in transportation, where, but for such delay, the cattle could have been transported to destination before the expiration of the 36 hours provided by the interstate commerce act as the limit of confinement.

Appeal from Circuit Court, Howard County; A. H. Waller, Judge.

Action by Charles W. Lay against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

O. M. Spencer, H. J. Nelson, and W. J. Allen, for appellant. W. M. Williams and Sam C. Major, for respondent.

BROADDUS, P. J.

This suit was instituted in Howard county, Mo., against the appellant and the Missouri, Kansas & Texas Railroad Company. The action is to recover damages by reason of the negligence of the defendants in failing to deliver cattle on the Chicago market within a reasonable time. The damages alleged are for loss on account of decline in the market, excess shrinkage, depreciation in value, and for extra feed.

Before shipment, plaintiff notified the Missouri, Kansas & Texas Railroad Company that he would ship his cattle from Burton, Howard county, Mo., a station on its road about 87 miles from Hannibal, on the 26th of September, 1908, and drove them to said station on the evening of that day. The latter company notified the appellant that the cattle would reach Hannibal on the next day, the 27th of September, which notice appellant received about noon on the 26th, the day it was given. The cattle were loaded on the morning of the 27th and delivered to the carrier about 9:30 a. m., and they reached Hannibal at 2:45 p. m. of that day. At 3:20 p. m. they were delivered to appellant. The distance from Hannibal to Quincy on the route is 20 miles, but the cattle did not arrive there until about 1 o'clock the next morning. The delay in getting the cattle from Hannibal to Quincy was partly occasioned by the fact that no regular freight train passed through Palmyra, a junction of the road between the two points, until 11:55 p. m. They were taken by an extra coming from the west and passing through Palmyra and arrived at Quincy as stated about 1 o'clock a. m. They started from Quincy at about 6 a. m., and arrived at Galesburg, a distance of 100 miles, the next morning at 11:45 o'clock. The evidence tended to show that the delay in making the 100 miles was caused by the bursting of an air hose, pulling out of drawheads, the breaking of draft timbers, the jerking and pulling of the train. The evidence of appellant tended to show that there had been proper inspection. The train contained 50 loaded cars, and it required two engines to propel it. When the train arrived at Galesburg, the cattle were unloaded and remained there for eight hours, when they were reloaded and arrived in Chicago at the chutes at 7:09 p. m. on the 29th. Had there been no delay, the cattle should have reached Chicago for Monday's market, the 28th of September It was shown that from 19 to 20 hours would have been a reasonable time for the cattle to have gone from Hannibal to Chicago. Plaintiff's evidence tended to show that there was no market for the cattle on the day of their arrival, consequently they were kept over and sold on the next day's market; that there had been a decline in prices from the day on which cattle should have arrived and the day on which they were sold; that there had been an extra shrinkage by reason of the delay; that their grade had been lowered thereby and their value lessened; and that respondent had also been put to extra cost for feed. Respondent was permitted to testify as to the prices of cattle on the Chicago market over the objections of defendant. He was asked if he knew what the market prices were on particular days, to which he answered in the affirmative. It was shown that he had had 20 years' experience in shipping and selling cattle on the market. There was no cross-examination as to his qualification to testify as an expert. Objection was made and overruled as to the evidence of a witness by the name of Bowles, who had been engaged for many years in the commission business in selling animals on the market. He was allowed to refresh his memory by reference to the Drover's Journal, a publication that recorded the daily sales of cattle and other stock on the market. At the close of plaintiff's evidence, the defendant interposed a demurrer to his right to recover, which was overruled by the court. Defendant's evidence was to the effect that there were two regular scheduled freight trains from Hannibal by which the cattle could be shipped to Quincy. One was due to leave Hannibal at 2:20 a. m. and the other at 11:25 a. m., so that there was no regular scheduled train from Hannibal by which plaintiff's stock could have been transported prior to 2:20 a. m. Monday, September the 28th, the next day; that consequently an extra was ordered to run from Hannibal to Palmyra which carried plaintiff's cattle to that point and connected them with the train going to Quincy; that, just before the train passed out of the yards at Quincy, an air hose bursted, which resulted in pulling out a drawbar and other damage; that after some further delay, caused by meeting trains, taking coal, and other things incident to the ordinary run of a freight train, it arrived at Galesburg at 11:45 a. m., Monday, September 28th, where the cattle were taken out, fed, and watered. A witness for the defendant testified that the...