Louisville & N.R. Co. v. Crain

• Decision Date: 29 October 1920
• Parties: LOUISVILLE & N. R. CO. v. CRAIN.
• Court: Kentucky Court of Appeals

224 S.W. 1063

189 Ky. 431

LOUISVILLE & N. R. CO. v. CRAIN.

Court of Appeals of Kentucky.

October 29, 1920

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by J. B. Crain against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed with directions to grant new trial.

Benjamin D. Warfield and Moorman & Woodward, both of Louisville, for appellant.

Thomas C. Mapother, of Louisville, for appellee.

THOMAS J.

Plaintiff and appellee, J. B. Crain, seeks by this suit to recover from the defendant and appellant, Lousiville & Nashville Railroad Company, the sum of $1,380.63 alleged to have been sustained by him on the shipment of four carloads of stock from Mitchellsburg, Ky. to Louisville, Ky. the first car being shipped on December 12, 1917, and the other three two days thereafter. The damages sued for were produced, as alleged by the negligent failure of defendant to furnish cars for the shipment of the stock (consisting mainly of hogs), and for unreasonable delay in transporting them after the cars were loaded and received for shipment, and in negligently handling the shipments so as to cause the death of some of the animals and the crippling of others. The items of damage claimed because of the respective delays consisted in an excessive shrinkage in weight of the animals shipped, and in compelling plaintiff to sell them on a lower market than he could and would have done had there been no delay. There is also a claim for an extra feed bill because of a failure to furnish the cars in time, and likewise an item for the value of the stock killed and for the damage done to those crippled. The answer denied the negligence charged, as well as the damages claimed, and pleaded affirmatively that the delay which did occur, both in furnishing the cars and in the transportation of the shipments, was due to an act of God, consisting in an extraordinary and unprecedented fall in temperature accompanied "with the deepest snow ever known, and the weather was excessively cold, thereby retarding the operation of trains and the regularity of transportation," because of which it could not with reasonable or even extraordinary diligence deliver the ordered cars any sooner than was done nor could the transportation of them have been made with any greater dispatch than it was. A reply made the issues, and upon trial there was a verdict and judgment in favor of plaintiff for the sum of $500, to reverse which defendant prosecutes this appeal.

It is urged for reversal: (1) That defendant's motion for a peremptory instruction, made at the close of plaintiff's testimony and reviewed at the close of all the testimony, should have been sustained; (2) the admission of incompetent testimony by plaintiff over defendant's objections; (3) the verdict is flagrantly against the evidence; and (4) error of the court in giving and refusing instructions.

At the outset it may be said that the record shows, and which is agreed to by attorneys that the principal item of damage grows out of the alleged delay in failing to furnish the cars for the shipment of the stock after plaintiff notified defendant's agent at Mitchellsburg to procure them. There is no evidence of any agreement by the agent to obtain the cars for any particular time. The only request made to her was that plaintiff desired the cars for the shipment of his stock, and there is no intimation of any delay on her part in notifying the proper agents of defendant to furnish them. Under such circumstances it was the duty of the defendant to furnish them within a reasonable time after the request to do so. According to the proof a reasonable time under usual and ordinary conditions in this case was 24 hours after notice. Plaintiff ordered the cars in this instance on the 9th and 10th of December, but he did not receive the first one until the 12th of that month, and the others between then and the 14th. The testimony shows, without contradiction, that on the night of the 7th of December, 1917, the thermometer in the latitude where the shipments were made dropped to zero and a snow fell 15 or more inches deep; that the weather remained at about that temperature or colder throughout the period covered by the transactions involved, and as a matter of fact we know as a part of the current history of the country that it lasted for 60 days. Covering the period involved it is also shown that snow continued to fall each successive day, and there were severe blizzards and storms. The tracks of the defendant between Mitchellsburg and Louisville, and in fact all over the surrounding territory, if not over the entire portion of the defendant's railway system, were covered in snow to such an extent that trains were not only delayed, but many of them were actually annulled. Frequently, as shown by the testimony, engines would "freeze up" while out upon the road and when trains were operated they were greatly reduced in tonnage, and many of them as reduced had to be operated with two engines. The yards in Louisville were in like condition, and the roundhouse there became so clogged with snow that it became impossible to operate it, and section hands had to be taken from their regular duties to clean it out. These obstructions prevailed to such an extent that extra shifts of hands had to be employed so as to work upon the tracks both day and night in order to keep them in condition to...