Owen v. Chicago Great Western R. Co.

• Citation: 47 S.W.2d 195
• Decision Date: 29 February 1932
• Docket Number: No. 17384.,17384.
• Parties: OWEN et al. v. CHICAGO GREAT WESTERN R. CO.
• Court: Court of Appeal of Missouri (US)

47 S.W.2d 195

OWEN et al. v. CHICAGO GREAT WESTERN R. CO.

No. 17384.

Kansas City Court of Appeals. Missouri.

February 29, 1932.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

"Not to be officially published."

Action by Ferd Owen and another against the Chicago Great Western Railroad Company. From an order granting a new trial, defendant appeals.

Reversed and remanded, with directions.

Ryland, Stinson, Mag & Thomson, of Kansas City, for appellant.

Farrar & Phillips, of Kansas City, for respondents.

BOYER, C.

This is an appeal by defendant from an order granting a new trial. Plaintiffs were copartners engaged in business under the name of Owen Bros. Horse & Mule Company at Kansas City. They sued to recover damages for injuries to a carload of mules delivered to defendant. After preliminaries, the petition states: "Plaintiffs further allege that at the time of delivery of said mules to defendant, as aforesaid, they were sound and healthy and in good shipping condition; that it thereby became and was the duty of the said defendant to deliver said mules at their destination in as good condition as when received at point of origin, but that the defendant failed to discharge said duty, and when mules were delivered the same were bruised, skinned and injured and that by reason of the said damaged and injured condition of said mules, the market value was six hundred twenty ($620.00) dollars less than it would have been if said mules had been delivered in reasonably good condition."

The answer was a general denial and a further plea that whatever injury, loss, or damage was sustained by the live stock described in plaintiffs' petition was caused by and due to the inherent vice and natural propensities of the animals, and by the act and neglect of the plaintiffs in loading said animals in the manner in which the plaintiffs did load them.

Facts not controverted show that plaintiffs on March 27, 1928, ordered from defendant a 36-foot car to be furnished at the stockyards for the purpose of carrying a load of mules to Creston, Ill. The car was furnished at the proper loading dock; plaintiffs had 25 large mules which they delivered to the stockyards company to be loaded in the car, and agents of the stockyards company did the loading for the railroad company. There was difficulty in getting the mules into the car, and before the car was completely loaded some of the mules were discovered to be down in the car. They were then unloaded and reloaded. When they were all finally in the car it was sealed about 4 p. m. of that day, and shortly thereafter started on its way to the connecting line of the defendant company about one mile distant, it being conveyed thereto by the Kansas City Southern Railway Company. When the car reached the point of connection with the Chicago Great Western, it was discovered that some of the mules were down, and defendant ordered it back to the stockyards to be unloaded. This was done, and the mules were unloaded about two hours after they had been loaded into the car. Upon examination the following morning, it appeared that 12 or 13 of the mules carried bruises and injuries to their heads, limbs, and bodies. On the following day a larger car, 40 feet in length, was furnished; the mules were loaded into it, and were carried to their destination without further injury.

Evidence on behalf of plaintiffs tended to show that the first car in which the mules were loaded was improperly bedded; that it had insufficient and improper bedding; that the car was old, with oak flooring which appeared to have been wet and slick. Plaintiffs' counsel in repeated questions to his own witnesses and to those of defendant sought to elicit information as to the usual and customary method of bedding a car by railroad companies for shipment of live stock, and sought to show, and offered evidence tending to prove, that the car was not bedded in the usual and customary manner, nor with the material usually employed. There was special stress laid upon this issue by the plaintiffs, and their main endeavor was to establish the fact of defendant's negligence, in respect to the manner in which the car was bedded, by its failure to follow the customary method, and that such negligence caused the injury to the animals.

Evidence on behalf of defendant was to the effect that the car furnished was bedded in the usual and customary manner and with the quantity and kind of material ordinarily used for the shipment of live stock, and that any defect in bedding was not the cause of the injuries to the mules; that plaintiffs overloaded the car and ordered a 36-foot car instead of one of adequate size because of a difference in price; that a 36-foot car was inadequate to carry mules to the number and size of the ones placed in it; that the mules were by nature mean and wild, and on account of their crowded condition and their inherent propensities were fighting from the time they were first loaded to the time they were ordered back for unloading; and that this was the cause of the damage. It was further shown by defendant that there was no unusual or rough handling of the car to occasion injury.

The main issue of fact contested at the trial arose over the usual and customary method of bedding a car, plaintiffs contending that the car was not so bedded and defendant contending that it was.

At the close of the evidence the case was submitted to the jury upon instructions tendered and given at the instance of both sides. Instructions for plaintiffs submitted the case upon the theory of negligence, and one of said instructions directed the jury that, if it found that the mules were delivered by plaintiffs to defendant for shipment, and at the time were in a sound and healthy condition, "and that while in transit a number of said mules were bruised, skinned and injured by the negligence of defendant, then your verdict should be for plaintiffs."

Instructions were given on behalf of defendant directing the jury that, if...