McCarthy v. Terre Haute & Indianapolis R.R. Co.

• Decision Date: 01 June 1880
• Citation: 9 Mo.App. 159
• Parties: JOHN MCCARTHY, Respondent, v. TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

9 Mo.App. 159

JOHN MCCARTHY, Respondent,

v.TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 1, 1880.

1. In the absence of a special contract a common carrier is bound to transport and deliver goods marked to a certain destination beyond the end of its line, only according to the usage of its business, and is not liable for losses beyond its line.

2. The giving a through rate to the shipper by the carrier is not of itself evidence of a special contract to carry beyond the latter's line.

3. The receiving of goods for shipment to a point beyond its line, by a carrier having knowledge of an obstruction in transportation beyond its line, may not be a breach of its duty as a carrier.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

E. W. PATTISON, for the appellant: In the absence of a special contract, the carrier is only liable for the carriage of the goods over his own route, and perhaps the safe storage and delivery to the next carrier.-- Railroad Co. v. Manufacturing Co., 16 Wall. 318; Railroad Co. v. Pratt, 22 Wall. 123; Darling v. Railroad Co., 11 Allen, 295; Burroughs v. Railroad Co., 100 Mass. 26; Babcock v. Railroad Co., 49 N. Y. 491; Brintnall v. Railroad Co., 32 Vt. 673; Railroad Co. v. Forsyth, 61 Pa. St. 81; Coates v. Express Co., 45 Mo. 238. The giving of a through rate will not bind the carrier to carry beyond its line.-- Hoagland v. Railroad Co., 39 Mo. 451.

T. J. ROWE, for the respondent: A carrier who receives goods for transportation, when it has knowledge of the existence of some impediment to transportation, is liable to the shipper for any damage that results from that impediment. The reception for transportation of respondent's cattle under all the circumstances of this case was such negligence on the part of appellant as to render it liable for damages sustained thereby.-- Clark v. Pacific R. Co., 39 Mo. 191; Wolf v. Express Co., 42 Mo. 426; Levering v. Insurance Co., 42 Mo. 92; Pruitt v. Railroad Co., 62 Mo. 528; Tucker v. Pacific R. Co., 50 Mo. 385; Tuggle v. Railroad Co., 62 Mo. 427. The measure of damage is the difference between market value on day of arrival and the day they should have arrived, and the shrinkage and the additional expenses occasioned by the delay.-- Sturgeon v. Railroad Co., 65 Mo. 573; Tucker v. Pacific R. Co., 50 Mo. 385; Faulkner v. Southern Pacific R. Co., 51 Mo. 311; Smith v. Whitman, 13 Mo. 352.

BAKEWELL, J., delivered the opinion of the court.

This is action against defendant, as a common carrier, for damages for delay in transporting freight. It is alleged in the petition that plaintiff owned and operated a railroad from East St. Louis to Indianapolis, connecting there with the Pan-Handle Road, which connected at Pittsburg with the Pennsylvania Central; that defendant owned and ran upon their road, in connection with the two other roads, freight cars for carrying freight between East St. Louis and Philadelphia, and was a common carrier for hire between the last-named cities; that on July 20, 1877, at East St. Louis, plaintiff delivered to defendant one hundred and seventy-one sound cattle, worth $15,000, and in consideration of $1,300 agreed to be paid by plaintiff, defendant agreed to carry the same safely, and deliver them to plaintiff's agent at Philadelphia, within a reasonable time; that five days was a reasonable time, but that defendant so misbehaved and neglected its duty as carrier that they failed to deliver the same until seventeen days; that if defendant had used, as it was bound, ordinary care and diligence in forwarding and carrying the cattle, they would have arrived on July 25th; that, meanwhile, their market value had declined $20 per head; that plaintiff was, consequently, put to great expense in feeding and caring for the cattle, by reason of all which he has been damaged $4,900. The answer of defendant, after a general denial, sets up a special defence that defendant carried the cattle to Indianapolis, the end of its route, on July 21st; that the Pan-Handle Road could not receive them because of the railroad strikes and riots of that year, the particulars of which are set out; that the rioters held, not only the Pan-Handle Road, but all roads by which Philadelphia could be reached, from July 21st to August 1st; that it was, therefore, impossible for defendant to forward the cattle till that date, and that they were then received by the Pan-Handle Road and at once forwarded to Philadelphia; and that if the price of cattle was higher in Philadelphia on July 25th than on the day of their arrival, this was owing to the scarcity of cattle caused by the strike. Plaintiff replies that defendant knew of the strike, of the condition of the road and of its connecting roads, as early as July 18th, and having such knowledge, received plaintiff's cattle for the purposes and on the agreement set out in the petition.

Respondent introduced testimony tending to show that he shipped the cattle on July 20, 1877, on appellant's road, of which the termini were East St. Louis and Indianapolis. On July 19th appellant refused to take them, alleging that there was a strike, which would soon be over. Respondent testified that appellant gave him through rates from East St. Louis to Philadelphia, and that he knew from this that appellant had connections with the Pennsylvania Central and Pan-Handle Roads. A bill of lading was delivered at the time of the shipment; this was attached to a draft by respondent, and forwarded to Philadelphia. There was testimony as to damages. There was no evidence that defendant was informed of the destination of the cattle, or knew to whom they were consigned, nor that plaintiff paid anything for the transportation of the stock, nor to whom he paid, or agreed to pay, the rate of transportation fixed. The evidence was that appellant's cars did not run to Philadelphia; there was nothing to show any agreement between the connecting lines. Plaintiff sent one Fox from East St. Louis in charge of the cattle. They left East St. Louis on the afternoon of July 20th, and reached Indianapolis at noon, next day. When they reached Indianapolis they were taken by defendant to the stock-yards of the Pan-Handle Road, and found a dispatch from the officers of that road, that no cattle would be received in the yards except at owner's risk. Fox then telegraphed from Indianapolis to the general freight agent of the Pan Handle Road, asking him if they would take the cattle through, and received a reply that they would not. They were kept in the yards of the Pan-Handle Road until the roads were open for traffic, when they were at once sent forward.

At the close of plaintiff's case, an instruction in the nature of a demurrer to the evidence was refused.

Defendant introduced evidence tending to show that it made every effort to forward the cattle from Indianapolis to Philadelphia, and that it was impossible to send them east of Indianapolis before August 1st, on account of the strike and riot along the lines in Indiana, Ohio, and Pennsylvania. The trouble began in Pittsburg on July 19th, but was not believed to be very serious until late in the day on the 21st. On July 20th, no apprehension was felt in St. Louis of serious, long-continued interruption of traffic. The rioting began at Indianapolis on July 23d. Everything that was humanly possible seems to have been done, both in Pittsburg and Indianapolis, to move the trains.

At the instance of plaintiff, the court instructed the jury:

1. That if they believe from the evidence that the defendant, on the twentieth day of July, 1877, received from the plaintiff, at East St. Louis, one hundred and seventy-one cattle, for the purpose of carrying and forwarding them from East St. Louis to Philadelphia; that it was the duty of the defendant to transport said cattle in the usual and ordinary time required by its trains, or those of its connecting lines, if it could be done by the exercise of ordinary care and diligence; and that if plaintiff's cattle were damaged by any unreasonable delay caused by the negligence of defendant, taking into consideration the distance to be travelled, and the usual and ordinary modes of transportation in such cases, then the jury will find for the plaintiff.

2. Though they may believe from the evidence that defendant was prevented from carrying and forwarding the cattle to plaintiff's consignee at Philadelphia within a reasonable time after the receipt of them by defendant, on account of the lawless violence of an armed mob that obstructed transportation along the line of the defendant and its connecting lines, yet they will find for the plaintiff if they believe that plaintiff sustained loss directly brought about by reason of the negligence and want of proper care and foresight of the defendant and its agents and servants.

3. If the jury believe from the evidence that defendant, or its agents or servants, knew of the existence of an armed mob at any point or points along its line of railroad, or that of its connecting lines, between East St. Louis and Philadelphia, and they had reason to believe that said armed mob would obstruct transportation along its line and its said connecting roads at the time or before it received plaintiff's cattle, and that, notwithstanding said knowledge, it received plaintiff's cattle for transportation to Philadelphia, and...