Missouri, K. & T. RY. Co. v. Truskett

• Decision Date: 27 October 1900
• Docket Number: 1,366.
• Citation: 104 F. 728
• Parties: MISSOURI, K. & T. RY. CO. et al. v. TRUSKETT.
• Court: U.S. Court of Appeals — Eighth Circuit

104 F. 728

MISSOURI, K. & T. RY. CO. et al. v. TRUSKETT.

No. 1,366.

United States Court of Appeals, Eighth Circuit.

October 27, 1900

In Error to the United States Court of Appeals in the Indian Territory.

1. CARRIERS-- DELAY IN TRANSPORTATION OF STOCK-- MEASURE OF DAMAGES.

In an action against a railroad company to recover damages for an alleged unreasonable delay in the transportation of cattle it is not error to take as the basis for computation of damages the difference in the market price of the cattle in the market to which they were being shipped, where their destination was known to the defendant, although its contract covered their transportation only over its own line, and their delivery to a connecting carrier for the remainder of the shipment.

2. EVIDENCE-- COMPETENCY OF EXPERT WITNESSES-- MARKET VALUE OF CATTLE.

Stockmen who for 10 years have been engaged in shipping and selling cattle in the principal markets, and are familiar with the grading of cattle therein, and with prices as given in the market quotations, are competent to testify to the value in such markets at a given time of a particular shipment of cattle, of whose quality and condition they had personal knowledge.

3. CARRIERS-- DELAY IN TRANSPORTATION OF STOCK-- DEFENSES.

A railroad company cannot be exonerated from liability for an unreasonable delay in the transportation of stock on the ground that a heavy dew rendered the track slippery and impeded the progress of the train; such an occurrence being an ordinary one, against the effect of which it was the duty of the company to provide.

4. APPEAL-- AFFIRMANCE-- STATUTORY DAMAGES.

The provision of Mansf. Dig. Sec. 1311 (Ind. T. Ann. St. 1899, Sec. 813), adopted and in force in the Indian Territory, which requires an appellate court, upon the affirmance of a judgment for the payment of money, which has been superseded, to award against the appellant 10 per cent. damages on the amount superseded, is obligatory on the United States court of appeals for the Indian Territory.

5. CARRIERS-- DAMAGES FOR DELAY IN SHIPMENT-- INTEREST.

An action against a railroad for delay in the transportation of stock, by reason of which the shipper suffered damages, is one for breach of contract, and interest is recoverable on the amount of the loss from the time compensation therefor was demanded.

Clifford L. Jackson, for plaintiffs in error.

S. M. Porter, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This action was brought more than eight years ago by H. A. Truskett, the defendant in error, against the Missouri, Kansas & Texas Railway Company, one of the plaintiffs in error, to recover damages incident to an alleged unreasonable delay in the transportation of about 180 head of cattle from Stevens Station, in the Indian Territory, to Paola, Kan. The case did not reach a trial in the lower court until four years after the action was instituted, when it resulted in a verdict and judgment in favor of the plaintiff below for the sum of $893.66. The assignment of errors is very voluminous, embracing, as it does, 47 specifications of error. But many of the specifications are not noticed in the briefs, and no notice will be taken by this court of those which have been practically abandoned by failing to argue them.

In the course of the trial below there was some controversy at first as to whether the cattle were shipped to Chicago, Ill., by way of Paola and Kansas City, in pursuance of a verbal contract between the carrier and the shipper, or from Stevens Station, in the Indian Territory, to Paola, in pursuance of a written contract. It is conceded that the delay of which complaint is made occurred between the last-mentioned points on the line of the defendant's road. Before the last-mentioned controversy was determined by the trial court, come evidence had been introduced tending to establish an oral agreement for the transportation of the cattle to Chicago; and some evidence had also been introduced as to the market value of the cattle at Chicago, Ill., at the time when they should have arrived.

Complaint is made in the first instance because the plaintiff below was permitted to introduce any evidence as to the market value of the cattle in Chicago. Before the trial in the lower court was concluded that court ruled definitely, and so charged the jury, that the cattle were in fact transported by the carrier in pursuance of a written contract binding it to transport them to Paola, and it accordingly withdrew from the consideration of the jury all the evidence which had been introduced tending to show an oral agreement for the transportation of the stock to Chicago. When it came to instruct the jury as to the quantum of damages, it advised them 'that in arriving at the amount of such damages they must not consider any evidence as to the market value of the cattle at Chicago, Ill., unless they should find from the evidence that the cattle were to be shipped to and sold only in that market; but if the jury should find from the evidence that the cattle were to be shipped to and sold only in Kansas City, Missouri, they must confine themselves to the evidence with reference to the markets and value of the cattle at that place. ' As heretofore stated, the evidence clearly showed that the delay in transporting the cattle of which complaint was made occurred wholly on the defendant's line of road, before they had reached Paola; and the theory of the court in giving the instruction aforesaid appears to have been that, although the contract of the carrier only called for the transportation of the stock to Paola, yet, if there had been unreasonable delay in reaching the latter point, the carrier knew when it received the stock that the cattle was destined to Chicago, and were to be there sold the market value of the stock at the latter place at the time they would have arrived but for the unreasonable delay on defendant's road might be considered in assessing the damages. We are of opinion that this view of the case was correct, and that no error was committed in admitting testimony relative to the value of the cattle in Chicago, inasmuch as the jury was advised that such testimony must be ignored unless the cattle were destined to be sold in that market only. There was testimony in the case which had a...