Pruitt v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 May 1876
• Citation: 62 Mo. 527
• Parties: WILLIAM PRUITT, Respondent, v. THE HANNIBAL & St. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

62 Mo. 527

WILLIAM PRUITT, Respondent,

v.THE HANNIBAL & St. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Caldwell Circuit Court.

James Carr, for Appellant.

I. There was a very sudden and great influx of business thrown upon the road for transportation far exceeding its capacity. This was a legal excuse for not shipping the hogs with promptness. (Balentine vs. North Mo. R. R. Co., 40 Mo., 491; Wilbert vs. N. & E. R. R. Co., 12 N. Y., 245; Galena & Chicago Union R. R. Co. vs. Rae, 18 Ill., 489; R. R. Co. vs. Reeves, 10 Wall., 176; Denny vs. N. Y. C. R. R. Co., 13 Gray, 481; Morrison vs. Davis, 20 Penn. St., 171; Clark vs. Pac. R. R. Co., 39 Mo., 184.)

II. Such snow storms and such unheard of cold weather constitute a legal excuse for failing to ship the respondent's hogs. (See authorities cited supra.)

III. The United States monopolized the road, as it had a right to do by the road's charter, for the transportation of troops or munitions of war, in preference to all other persons. (Act of incorporation of appellant, approved Feb. 16, 1847.)

IV. The plaintiff's instructions presented an ex parte view of the case to the jury. (Goetz vs. Han. & St. Jo. R. R. Co., 50 Mo., 472; Sawyer vs. Same, 37 Id., 240; Clark vs. Hammerle, 27 Id., 55; Thomas vs. Babb, 45 Id., 384; Mansfield vs. Corbin 2 Cush., 151.)

V. The plaintiff's fourth and fifth instructions lay down no legal measure of damage to guide the jury in assessing damages, and should have been refused. (Clark vs. Pacific R. R. Co., 39 Mo., 184; Balentine vs. N. M. R. R., 40 Mo., 491.)

VI. The plaintiff's sixth instruction is a departure from the issues made by the petition and answer, alleging favoritism in shipping which is not alleged in the petition. It is calculated to mislead the jury. (Balentine vs. N. M. R. R. Co., 40 Mo., 491; Moffatt vs. Conklin, 35 Mo., 453.)

VII. The seventh instruction is erroneous in that it ignores the shrinkage of the hogs on account of the excessively cold weather, and the acts of the hogs themselves, in bunching, piling and smothering each other. The effect of this instruction is not counteracted by the giving of an instruction on the same point at the request of the appellant. (Goetz vs. H. & St. J. R. R. Co., 50 Mo., 472.)

VIII. A carrier of goods or cattle is only bound to carry in a reasonable time under ordinary circumstances, and is not bound to use extraordinary efforts, or incur extra expense in order to surmount obstructions caused by the act of God; as a fall of snow. (Bradden vs. Great Northern Rly., 28 L. J., 51; 2 L. T., 94; Redf. Car., § 305.)

Shanklin, Low & McDougal, for Respondent.

I. After receiving the hogs mentioned in the first count of plaintiff's petition, and agreeing to ship them, the defendant was absolutely bound to carry out the contract or respond in damages for a breach thereof. The matters of excuse pleaded in the answer constituted no defense. The act of God or the public enemy will excuse the performance of a duty imposed by law, but not an obligation growing out of a voluntary contract. Events, against which the parties could have provided in their contract, cannot be set up as an excuse for the non-performance of that contract. (Collier vs. Swinney, 16 Mo., 484; Taylor vs. St. Bt. Robert Campbell, 20 Mo., 254; Hand vs. Baynes, 4 Whart., 214; Harmony vs. Bingham, 1 Duer., 209; Davis' Adm'r vs. Smith, 15 Mo., 467; School Dist. vs. Dauchy, 25 Conn., 530; Ang. Carr., § 294; 2 Redf. Railw., 162; Add. Torts [1 Am. ed.], 991, 992.)

II. It was no excuse that the delay was occasioned by an unusual accumulation of freight along the line of defendant's road. (Faulkner vs. South Pacific R. Co., 51 Mo., 311; Tucker vs. Pac. R. Co., 50 Mo., 386; Denning vs. G. T. R. Co., 48 N. H., 455; 2 Am. Rep., 267; 2 Redf. Am. Railw. Cas., 393; Han. & St. Jo. R. R. Co. vs. Swift, 12 Wall., 262.)

III. If it was true that the government was making large demands on the company for the transportation of military supplies and troops, the defendant would have been justified in refusing to receive freight offered in excess of the capacity of its rolling stock, but was no excuse for not forwarding that received. (Ill. Cent. R. R. Co. vs. Cobb, 64 Ill., 128; Ill. Cent. R. R. Co. vs. McClelland, 54 Ill., 58; Porcher vs. Northeastern R. R. Co., 14 Rich. [S. C.] Law, 181; Patterson vs. North Carolina R. R. Co., 64 N. C., 147.)

IV. The station agent was clothed with the powers usually conferred upon station agents, or at least, if his powers were limited, the company kept the fact a profound secret. (Denning vs. Grand Trunk R. R. Co., supra; Watson vs. Memphis & C. R. R. Co., 1 Cent. L. J., 358, Supreme Court of Tenn., not yet reported; 2 Redf. Railw., 4 ed., 127, § 182.)

V. The act of God which will excuse in such a case must be the sole cause of the injury; if negligence of the carrier contributes to the injury he is liable. (Wolf vs. Am. Ex. Co., 43 Mo., 491; Armentrout vs. St. L., K. C. & N. R. R. Co., 3 Cent. L. J., 235; Read vs. Same, 60 Mo., 199; Mich. Cent. R. C. vs. Curtis, 8 Chicago Leg. News, 228; Condict vs. Grand Trunk R. R. Co., 54 N. Y., 500; Seigel vs. Eisen, 41 Cal., 109.)

NAPTON, Judge, delivered the opinion of the court.

This was an action for damages alleged to have been occasioned by the defendant's negligence and breach of contract and failure of duty as a common carrier.

The evidence of the plaintiff tended to establish the following facts: The plaintiff's son, as agent for his father, applied to the station agent of defendant at Hamilton, some time prior to the 1st of December, 1863, for transportation of about three hundred live hogs, and the agent agreed with or promised the plaintiff's son, that the hogs should be transported to Macon between the 1st and 10th days of December. The hogs were driven to the station, and on the 1st of December placed in the stock pens of the company. None of the hogs were shipped until about the 25th of December, and in the meantime about fifty head died in the pens by exposure to a snow storm, which occurred about the middle of the month, and for want of shelter, and about one-third of the hogs were killed by the plaintiff and shipped on coal cars, and by deterioration, consequent upon this mode of transportation, brought one-half of the market price. The expenses attending the delay, by feeding, cost of hands, etc., are stated in the evidence; but need not be detailed here, as no question arises in regard to such matters.

About the 12th of December, 1863, a second contract was made with the agent at Hamilton for the transportation of about eight hundred hogs on the 14th or 15th of December. This second lot of hogs was driven to within about ten miles of the station on the 14th or thereabouts, when the agent of defendant sent word to the plaintiff not to bring them in, as they were crowded and could not ship them for a while. These hogs were kept in the neighborhood, shifting around to procure corn, till the 1st of February, 1864, upon assurances by the station agent, from time to time, that they would soon be able to transport them, until the plaintiff finally drove them on foot to Macon, a distance of one hundred miles, which occupied about fifteen days, thus arriving at Macon about the 15th of February.

There was proof of a loss of about one hundred and fifty hogs of the second lot, during this interval from the 20th of December to the 15th of February. The expenses incurred were also in proof. The loss of these hogs was occasioned partly by cold during the storm of snow in January, and piling, and partly from the usual accidents in driving, and by shrinkage, etc.

The petition charges not only negligence, but favoritism to other parties, and that the hogs of plaintiff were not taken in regular turn from the depot in their order of priority.

The defense relied on in the answer, and also in the testimony, was: 1. the unusual influx of freight along this road in the winter of 1863-4, especially of hogs, and the inability to furnish rolling stock sufficient to take all the hogs offered in a reasonable time; 2. the demands of United States government for transportation of military supplies and soldiers, and, 3. the remarkable and unprecedented snow storm which occurred this season; and nearly all the evidence of defendant is directed to these points. It does not appear, however, that the snow storm of the 15th of December stopped the passage of trains, but that the storm of the 31st December did stop the trains for from ten to fifteen days.

I ought to add, in regard to the defenses, that the plea of the statute of limitations was also interposed to bar a recovery.

The jury on the instructions found for the plaintiff, and assessed his damages on the first and second counts (which referred to the two lots of hogs heretofore mentioned) at $7,500. A remittitur was however entered for $2,000, and the verdict then stood at $5,500, and the court then refused to set it aside.

The following instructions were given for the plaintiff:

1. It was the duty of defendant to receive all live stock which was offered at Hamilton during the months of November and December, 1863, and to take, transport and deliver the same without unnecessary delay, according to contract.

2. If the jury believe from the evidence, that at any time within five years next before the 14th day of March, 1868, plaintiff offered for shipment at Hamilton, Missouri, a lot of live hogs, and that defendant's station agent at Hamilton accepted said hogs into the pens of defendant at Hamilton, for shipment, then no lack of rolling stock for shipping said hogs, nor the fact that the rolling stock was used by order of the military authorities of the United States, will amount to a sufficient excuse for failing to ship said hogs without unnecessary delay; and in that case, if the jury shall further find, that defendant failed to ship the hogs so received into said pens without delay,...