Pennsylvania Co. v. Clark

• Decision Date: 30 April 1891
• Citation: 27 N.E. 586,2 Ind.App. 146
• Parties: Pennsylvania Co. v. Clark et al.
• Court: Indiana Appellate Court

2 Ind.App. 146

27 N.E. 586

Pennsylvania Co.

v.Clark et al.¹

Appellate Court of Indiana.

April 30, 1891.

Appeal from circuit court, Allen county; Edward O'Rourke, Judge.J. Brackenridge, for appellant. Colerick & Oppenheim, for appellees.

Crumpacker, J.

Clark & Stanley sued the Pennsylvania Company as a common carrier for an alleged breach of special contracts for the shipment of 60 head of cattle from Columbia City, Ind., to Chicago, Ill. A demurrer to the complaint was overruled, and exceptions duly saved. An answer was filed, and the cause was submitted to the court, and resulted in a finding and judgment for the plaintiff below. The sole question raised by the record relates to the sufficiency of the complaint. Excepting title and caption, the complaint is as follows: “The plaintiffs complain of the defendant, and say that on the 24th day of July they were partners engaged in the business of purchasing cattle and shipping and selling said stock in the city of Chicago, Ill., and other markets of the country, which fact was well known to the defendant; that on said day the defendant was a corporation, operating the Pittsburgh, Ft. Wayne & Chicago Railway, a railroad running from the city of Pittsburgh, Pa., to the city of Chicago, Ill., passing through the cities of Ft. Wayne, Allen county, Ind., and Columbia City, in said state; that on said 24th day of July, 1888, the plaintiffs had sixty head of cattle at said Columbia City, which they informed the defendants they desired to be shipped to the city of Chicago, Ill., to arrive there in time for the morning market of July 25th, and to have the same taken on the evening freight train leaving said Columbia City about 6 p. m., and which said train would land the cattle aforesaid at the Union Stock-Yards, in Chicago, at about 7 o'clock a. m., on July 25th, as other previous shipments had been made by defendant for plaintiffs; that the defendant, well knowing plaintiffs' business, and the importance to them of having said stock at Chicago at said time, agreed with plaintiffs to haul said cattle on said train, and deliver the same at said Union Stock-Yards, on the morning, before 9 o'clock a. m., of said 25th day of July, and had the plaintiffs sign and enter into the three several contracts herewith filed, marked ‘Exhibits A,’ ‘B,’ and ‘C;’ that plaintiffs performed all and each of the several obligations therein mentioned, and had said cattle loaded on cars long before the arrival of said freight [train] which was to haul the same, but that the defendant, without any fault or negligence on plaintiffs' part, but wholly through the negligence and fault of the defendant, and without any reason or cause therefor, negligently and carelessly failed to carry said cattle on said train, and did not attempt to carry the same from said Columbia City until the third regular freight train thereafter, leaving Columbia City at about three o'clock a. m. on the 25th day of July, 1888; that because of said unreasonable delay in attempting to transport said cattle, through defendant's fault and neglect, as aforesaid, for which there was no reason or excuse, said cattle were not delivered in said Union Stock-Yards at Chicago, where consigned, until after three o'clock p. m. of said 25th, and after the closing of the market of the day of July 25th, which said market is open only between the hours of nine o'clock a. m. and three o'clock p. m. on all days, as was well known by defendant, when the same could not be sold until the next day; that the market price on July 25th was fifty cents per hundred pounds higher than on July 26th, when said cattle were sold, and that the same would have been sold on July 25th at said higher price had it not been for the fault and negligence of the defendant aforesaid; that said cattle weighed 8,500 pounds, and were worth 6 cents per pound on said 25th day of July. The plaintiffs lost by said neglect and failure of defendant the sum of $425.50 on said stock, by reason of said difference in the market value of said cattle, and loss of weight in said cattle of 15,000 lbs., and cost of keeping the same, all of which occurred without any fault or negligence on plaintiffs' part, but was wholly the default and negligence of defendant. Wherefore plaintiffs demand judgment for $450, and all other proper relief.”

There were three car-loads of cattle, and a contract was entered into for each load. These contracts are precisely alike in terms, and are all set out with the complaint. The following is a copy of them: “‘B.’ W. Manifest No. 12-87. Special notice to shippers of live-stock over the lines of the Pennsylvania Company, and to agents for the company: All persons in the service of the Pennsylvania Company are expressly forbidden to transport, or receive for...