Ratliff v. Quincy, O. & K. C. R. Co.

• Decision Date: 04 June 1906
• Citation: 94 S.W. 1005,118 Mo. App. 644
• Parties: RATLIFF et al. v. QUINCY, O. & K. C. R. CO.
• Court: Missouri Court of Appeals

94 S.W. 1005

118 Mo. App. 644

RATLIFF et al. v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. CARRIERS — CONNECTING CARRIERS — CONTRACT FOR THROUGH TRANSPORTATION.

A carrier contracting for a through shipment is liable for the negligence of connecting carriers, notwithstanding a provision in the contract of shipment exempting it from such liability.

2. SAME—CARRIAGE OF LIVE STOCK—DELAY IN TRANSPORTATION — ACTION — BURDEN OF PROOF.

In an action against a carrier for delay in transporting cattle, the burden is on plaintiff to show that the delay was due to defendant's negligence.

3. SAME—CARE REQUIRED OF CARRIER.

A common carrier is required to exercise reasonable diligence to complete the transportation of cattle without delays that could have been avoided by reasonable care.

4. SAME—FACTS SHOWING NEGLIGENCE.

Reasonable care imposes on a carrier the duty to provide a sufficient number of trains for the proper transaction of its ordinary business, and it is negligence for it to overload a train and thereby cause unreasonable delay in transporting cattle.

5. SAME—ACTION—EVIDENCE—SUFFICIENCY.

In an action against a carrier for damages caused by delay in the transportation of cattle, evidence held sufficient to show that the delays were due to overloading of the train.

6. SAME.

In an action against a carrier for delay in transporting cattle, evidence held to show that plaintiff made a claim for damages within 10 days after the unloading of the stock.

7. SAME—LIMITATION OF LIABILITY — REQUIREMENT OF NOTICE OF LOSS.

Where a contract of shipment requires any claim for damages to be made within a certain time from the unloading of the stock, the receipt of a claim by the carrier within the required period and its consideration on the merits without objection to its sufficiency amounts to an acceptance by the carrier of the claim as a full performance of the condition.

8. SAME—NOTICE OF LOSS—CONSTRUCTION.

A shipper of stock wrote the carrier that he had had "a very heavy shrink," and stated that in one instance all the cattle in one car were knocked down by rough handling, and complaint was made of the delay in transportation, which caused the stock to reach destination too late for a certain market. Held, that the letter did not amount to a claim for damages merely from loss of weight alone, and did not preclude recovery for loss due to depreciation on account of loss in weight, injury to quality, and decline in the market.

9. SAME—DELIVERY—SUFFICIENCY.

Where, in an action against a carrier for delay in transporting cattle consigned to commission merchants, it appeared that it was the custom to deliver cars at the unloading platforms of a stockyards company, which notified the consignee, and that delivery at the platforms was regarded as a delivery to the consignee, it was error to refuse an instruction that defendant's full duty was performed when it carried the stock to the proper unloading platform, and that it was not responsible for any delays in unloading by the stockyards company, or for damages by reason of lapse of time between the arrival of the train at the yards and arrival at the selling pens of the consignee.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Action by Newton Ratliff and others against the Quincy, Omaha & Kansas City Railroad Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed and remanded.

Hall & Hall and J. G. Trimble, for appellant. Harber & Knight, for respondents.

JOHNSON, J.

Plaintiffs sued to recover damages which they claim resulted from the negligence of defendant, a common carrier, in the transportation of fat cattle to market. In the first count of the petition the cause of action pleaded relates to a shipment of 93 head of plaintiffs' cattle, received by defendant at Melbourne, Mo., for delivery at the Union Stockyards at Chicago. In the second count the cause pleaded relates to a shipment of 63 head of cattle, made by J. A. Arnote, their owner, from Trenton, Mo., to the same destination; and this cause was assigned to plaintiffs by Mr. Arnote before the bringing of this suit. The shipments were carried by defendant on the same train. No written contracts of affreightment are pleaded. Both causes are grounded in negligence, and the acts of negligence pleaded will appear in our statement of the material facts disclosed by the evidence. The answer is a general denial. Plaintiffs had judgment on the first count in the sum of $282.48, and on the second for $231.41, and defendant appealed.

Plaintiffs, farmers and raisers and shippers of live stock in the vicinity of Mel bourne, applied to the agent of defendant at that place for four cars in which to ship their 93 head of cattle to Chicago and for two cars for a shipment of hogs to the same market. At the same time Mr. Arnote, another farmer and stock shipper, applied to the same agent of defendant for three cars in which to make his shipment of 63 head of cattle to Chicago from Trenton. Melbourne is some 12 miles west of Trenton, and defendant's road runs eastwardly from that point through Trenton, to Quincy, Ill., where it connects with the Chicago, Burlington & Quincy Railroad, running from Quincy to Chicago. The distance from Trenton to Quincy is 132 miles and from Quincy to Chicago 263 miles. The shippers advised defendant's agent that they desired to ship their stock on the evening of Saturday, August 15, 1903, to have it unloaded at the railroad stockyards at Quincy for food, water, and rest, and then forwarded to Chicago in time for the early market on Monday, the 17th. First the parties talked of sending the shipments forward on a regular mixed train, a passenger train that carried a limited number of freight cars, scheduled to leave Melbourne near midnight; but, when the agent learned that the shipments contained nine cars, he informed the shippers that the load would be too great for that train, and that defendant would furnish them a special train, as nine cars would make a full train load, owing to the heavy grades on the road. The shippers were satisfied with this proposal, and accordingly defendant provided the necessary cars at Melbourne and Trenton. Plaintiffs delivered their stock to defendant loaded in the cars at about 5:30 o'clock in the afternoon of the 15th and shortly thereafter the train departed. At Trenton a delay was encountered in the loading of the Arnote cattle, caused by a defective car door, and the train did not leave until about 8:30 o'clock that evening. According to the evidence of plaintiffs, the time ordinarily and reasonably consumed in the transportation of live stock from Trenton to Quincy does not exceed eight hours, but this train did not reach the latter place until about noon the following day. The cause of this extraordinary delay is not a matter of dispute. From Milan to Quincy the train was used as a local freight, and was stopped at nearly every station to do switching and to entrain other cars of stock and freight, so that before Quincy was reached the train consisted of 35 or 40 cars. The speed of the train was greatly retarded from this overloading. At two places long delays were encountered from the inability of the engine to pull the train over long upgrades. At these places the process called "doubling" was executed; that is, the rear half of the train was placed on a side track, and the engine pulled the front half to the next siding and then returned for the cars left behind. At Lewiston, west of Quincy, the train was passed by the mixed train which left Melbourne some 6 hours later. On arriving at Quincy the shippers were fold by defendant's yardmaster that they could not unload their stock for food, water, and rest and reach Chicago in time for the early market next day. Plaintiffs' witnesses say that the time usually and reasonably required in the carriage of live stock from Quincy to Chicago does not exceed 12 hours, and the shippers did not unload, as they did not wish to miss the Monday market. They left Quincy at 12:03 p. m. Sunday. From that place to Galesburg, a distance of 100 miles, their train did local work, including switching at various stations, and the stock was very roughly handled. About 7 hours were consumed in this run, and the train did not reach the stockyards at Chicago until 6:30 Monday morning. All of the stock was consigned to a commission firm employed by the shippers to handle and sell it at the yards. Two cars of the Arnote cattle were delivered at the unloading chutes and were received by the shippers' agent at about 7 o'clock in the morning, and were sold on the early market; but the remaining car of the Arnote cattle and plaintiffs' four cars were not received by the consignee until noon Monday, and, as the market had then declined and really was over for that day, and the cattle were very tired and stale, they were not sold until the following day. Plaintiffs say that at various points where switching was done the cars containing the stock were not left standing, but were used in switching and in several instances were carelessly handled. As a result the cattle were much bruised,...