Reading v. Chicago, B. & Q. R. Co.

• Decision Date: 02 February 1915
• Docket Number: No. 13876.,13876.
• Court: Missouri Court of Appeals
• Parties: READING v. CHICAGO, B. & Q. R. CO.

173 S.W. 451

READING v. CHICAGO, B. & Q. R. CO.

No. 13876.

St. Louis Court of Appeals. Missouri.

February 2, 1915.

Rehearing Denied February 16, 1915.

Appeal from Louisiana Court of Common Pleas; Edgar B. Woolfolk, Judge.

Action by James Lee Reading against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition that plaintiff remit $80.15.

Palmer Trimble, of Keokuk, Iowa, O. M. Spencer, of St. Joseph, J. W. Matson, of Louisiana, Mo., and M. G. Roberts, of St. Joseph, for appellant. Pearson & Pearson, of Louisiana, Mo., for respondent.

REYNOLDS, P. J.

This is the second appeal in this case, the judgment formerly rendered having been set aside and the cause remanded by our court for error in an instruction. See Reading v. Chicago, Burlington & Quincy Railroad Co., 165 Mo. App. 123, 145 S. W. 1166. On the case reaching the circuit court after our judgment of reversal, the petition being unchanged, defendant filed an amended answer which averred that the hogs complained of by plaintiff were not delivered to defendant and never had been in its possession until loaded upon defendant's cars; that if any damage occurred to the hogs prior to that time it so occurred while they were in the possession and under the control and care of plaintiff. It is further averred that if plaintiff placed his hogs in the stock yards at Reading Siding, he was using defendant's pens solely for his own convenience in lieu of retaining his hogs on his own premises until the evening of the day they were loaded on the cars, and that in so using defendant's stock pens plaintiff assumed the risk of putting and holding his hogs in the pen during all that part of the day prior to the loading of the hogs, and that defendant is in no wise liable for any damage or injury to plaintiff's hogs during the time that he so kept them in defendant's pens prior to the loading of the hogs by plaintiff into defendant's cars. Finally, it is set up as a defense that any injury or damage to plaintiff's hogs prior to the time they were loaded by him upon defendant's car, resulted wholly and solely from the negligence of plaintiff and his agents and employés in driving the hogs a long distance during the heat of the day and putting them in uncovered pens, the condition of which was well known to plaintiff, and in so leaving them there without any proper care or attention, and in failing to haul the hogs to the railroad pens as any ordinarily prudent shipper would have done under similar circumstances, hence defendant says it is in no wise liable to plaintiff for any damage or injury to his hogs sustained prior to the time plaintiff loaded them into defendant's car.

This was replied to by general denial.

Comparing these averments in the amended answer with the statement of the issues as set out when the cause was before us on the former appeal, it will be seen that the issues at this second trial were practically as at the former trial. So, too, the facts as developed at this second trial were substantially as at the first trial. They are so fully set out in the report of the case on the former appeal, that we need not repeat them. Most of the legal propositions involved are substantially as before and are so conclusively disposed of in that opinion, that we do not think it necessary to enter into a further discussion of them.

The error for which the former judgment was reversed, an error in an instruction, was not repeated at this second trial. No error is now assigned on the instructions given except as to one in which the court told the jury that if they found for plaintiff they might award him whatever sum they...