Midland Valley R. Co. v. Adkins
| Decision Date | 23 October 1912 |
| Docket Number | Case Number: 1979 |
| Citation | 1912 OK 680,127 P. 867,36 Okla. 15 |
| Parties | MIDLAND VALLEY R. CO. v. ADKINS. |
| Court | Oklahoma Supreme Court |
¶0 1. STATES--Verdict--Assent of Required Number of Jurors. Where a cause of action arose prior to statehood, but action thereon was not brought until after statehood, a verdict by three-fourths of the jury is valid.
2. CARRIERS--Carriage of Live Stock--Connecting Carriers--Liability. Where an initial carrier agreed to furnish cars to receive cattle for shipment, and the evidence shows that if it had done so the cattle would have made connection with a certain train on a connecting road for the point of destination, but the carrier failed to furnish the cars, on account of which failure the cattle were compelled to stand for twelve hours on the track of the connecting carrier, before they could be forwarded, and the carrier was compelled to unload the cattle for feed and water before they reached their destination, and the cattle sustained extraordinary shrinkage, and were a day late in reaching the market, and the market was lower than it was the day they should have reached it, and it appears that the connecting carrier transported the cattle with reasonable dispatch, the shipper is entitled to recover his entire loss from the initial carrier.
3. SAME--Statutory Provisions. Section 514, Comp. Laws 1909, which provides that "if a common carrier accepts freight for a place beyond his usual route he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier carrying to the place of address or connected with those who thus carry, and his liability ceases upon his making such delivery," exempts the initial carrier from liability occasioned by the default of the connecting carrier, but does not exempt it from liability for damages occurring on the connecting carrier, where the connecting carrier is free from fault and the loss was caused by the default of the initial carrier.
4. EVIDENCE--Opinion Evidence--Subject- Matter. Where a witness testified as to his experience in the cattle business, and qualified as an expert as to weights, his testimony as to weights was admissible, though he stated he "guessed" they weighed a certain amount, where his testimony considered together showed that he was giving his judgment based on his experience as a cattleman and his observation of the cattle.
5. SAME--Hearsay Evidence--Evidence Founded on Hearsay--Market Price. A person, who accompanied his cattle to market and sold them on a certain day, may testify from information received that day from commission men in that market, and from reading the market reports in the newspapers, as to the state of the market on the previous day, where he has had experience in shipping and selling cattle.
Edgar A. De Meules, for plaintiff in error.
¶1 This was a suit by J. D. Adkins against the Midland Valley Railroad Company for damages for failing to promptly furnish cars, and for delay in the transportation of certain cattle. Plaintiff requested the agent at Foraker to have the cars at Wheeler Switch to receive his cattle. Wheeler Switch is a siding on defendant's road where freight is received, but no agent is kept there. The business from there is transacted through the agent at Foraker. He was assured by the agent of the company that the cars would be there at eight o'clock in the morning, and was requested to have his cattle there at that time, so they would make connection with the 11:30 train on the Missouri, Kansas & Texas Railway for Kansas City. He had his cattle there at eight o'clock in the morning, but the cars were not placed until two o'clock in the afternoon. The cars left Wheeler Switch about half past two in the afternoon and did not reach Nelagony, where they were to be transferred to the Missouri, Kansas & Texas Railway, until half past nine at night. The distance between the two places is 40 miles, and the witnesses testify that the run ought to have been made in two and a half hours. The engine which drew the cars was broken down on one side and was hard to start. It would "stop on center" and had to be pushed and pried off. By reason of the delay the cars did not connect at Nelagony with any train over the Missouri, Kansas & Texas Railway, for Kansas City, and had to stand on the track at Nelagony all night. The cattle had to be unloaded at Parsons, Kan., in order to comply with the 28- hour law, and remained there about six hours. They did not reach Kansas City until the second day after they left Wheeler Switch. If they had been started at the time the company agreed to have the cars ready for loading and transported promptly, they would have reached Kansas City for the next day's market. There was a decline in price of 25 cents a hundred from the next day after they were loaded until the second day when they reached Kansas City. The court instructed the jury that three-fourths of their number could return a verdict. This is assigned as error. The transaction upon which the plaintiff bases his action occurred prior to statehood. The action was not brought until after statehood. It is the contention of the defendant that, as the cause of action arose prior to statehood, it was entitled to a trial under the procedure as it existed at that time, regardless of the fact that the action was not brought until after statehood. This question has already been decided by this court adversely to the contention of the defendant. The leading case is Independent Cotton Oil Co. v. Beacham, 31 Okla. 384, 120 P. 969. It was there held that three-fourths of the jury could return a verdict in a civil case brought since the admission of the state into the Union, notwithstanding the fact that the cause of action arose prior to statehood. This decision was followed in C., R. I. & P. R. Co. v. Baroni, 32 Okla. 540, 122 P. 926. The next assignment of error is the action of the court in overruling the defendant's demurrer to the evidence, and in refusing to instruct the jury to find for the defendant. The evidence showed that the defendant agreed to have cars ready so that the cattle would be loaded at eight o'clock in the morning. The company did not comply with this agreement. It failed to have the cars ready until two o'clock p. m. The engine furnished to haul them to Nelagony was broken down, and seven hours, or nearly seven hours, were consumed in hauling the cars from the point of loading to Nelagony, where they were to be transferred to the Missouri, Kansas & Texas Railway. Why is not the defendant liable? The evidence is clear that if the defendant had complied with its contract the cattle would have reached Kansas City in about nineteen hours from the time they were loaded, and that they would have been on the market a day sooner. It is urged that, notwithstanding the delay on the defendant's road, if the Missouri, Kansas & Texas Railway had taken the cars on with reasonable promptness after they had reached its line, the cattle would not have been damaged. The evidence does not show the schedule of trains on that road, but it does show that it had a train at 11:30 a. m. on the day the cars were loaded that would have taken the cattle, had they been there, and that it had no train that could carry the cattle from the time they arrived at Nelagony until they were taken out the next morning. That road could not be expected to change its schedules to carry cars, especially when it had had no previous notice that they would be delivered to it. St. L. & S. F. R. Co. v. Vaughan, 84 Ark. 311, 105 S.W. 573. The defendant had undertaken to furnish the cars at Wheeler Switch. If he had furnished them at the time agreed and carried them with reasonable dispatch, they would have made connection at Nelagony with a certain train on the Missouri, Kansas & Texas Railway for Kansas City. Defendant also urges that six hours were lost on the Missouri, Kansas & Texas Railway while the stock was being fed and watered. It is true this occurred on that road, but the necessity was created by the defendant. If it had furnish cars according to its contract, and carried them wtih reasonable dispatch, the cars would have reached Kansas City before the expiration of 28 hours, and it would not have been necessary to unload the cars. In Fox v. Boston R. Co., 148 Mass. 220, 19 N.E. 222, 1 L.R.A. 702, the syllabus is as follows:
"A carrier who accepts for transportation an article liable to be injured by freezing, under a special contract for delivery to a connecting line by a fixed time, and who negligently delays delivery to the connecting line, will be liable for damages occasioned by freezing on the connecting line, in consequence of such delays, where such freezing was reasonably to be anticipated and was contemplated by the parties.
¶2 In the course of the opinion the court said:
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