Sikes v. St. Louis and San Francisco Railroad Company
| Decision Date | 19 May 1915 |
| Parties | WM. H. SIKES and ALFRED E. SIKES, Doing Business Under the Firm Name of SIKES BROTHERS, Respondents, v. ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Scott County Circuit Court.--Hon. Frank Kelly, Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans, Moses Whybark and A. P. Stewart for appellant.
(1) The peremptory instruction requested by defendant should have been given. A showing of mere delay, with nothing more, is insufficient to support a recovery for delay in the transportation of live stock. Mere proof of delay is not proof of negligence. Ecton v. Railroad, 125 Mo.App 226; Wernick v. Railroad, 131 Mo.App. 52; Clark v. Railroad, 138 Mo. 426; Decker v. Railroad, 149 Mo.App. 537; Otrich v. Railroad, 154 Mo.App 435; Lay v. Railroad, 157 Mo.App. 473; Ridgeway v. Railroad, 161 Mo.App. 267; McDowell v. Railroad, 167 Mo.App. 576; Hickey v. Railroad, 174 Mo.App. 408; Gregory v. Railroad, 174 Mo.App. 550. (2) The court erred in giving instruction number 1 for plaintiffs. This instruction permitted a recovery by plaintiffs if the cattle were not transported within a reasonable time, irrespective of whether the delay was caused by defendant's negligence or not. Negligence is the gist of the action. Authorities cited under point 1. Witting v. Railroad, 101 Mo. 639; Otis Co. v. Railroad, 112 Mo. 633; Milling Co. v. Transit Co., 122 Mo. 276; Fish Co. v. Transportation Co., 143 Mo.App. 57-58; Bockserman v. Railroad, 169 Mo.App. 172-3; Yontz v. Railroad, 174 Mo.App. 482; Bell v. Railroad, 125 Mo.App. 667; Bolles v. Railroad, 134 Mo.App. 704. (3) Instruction number 2 given for plaintiffs is erroneous and conflicts with instruction number 2 given for defendant. It is reversible error to give conflicting instructions, no matter at whose instance they are given. Such instructions furnish no guide to the jury. Bluedorn v. Railroad, 108 Mo. 450; Stevenson v. Hancock, 72 Mo. 612; Stone v. Hunt, 94 Mo. 475; Berryman v. Cox, 73 Mo.App. 73; Kelley v. Railroad, 153 Mo.App. 119-120.
Gresham & Moore for respondent.
(1) There was no error in failure of the court to give peremptory instruction for the defendant; for if the court holds that under the pleadings and under the trial of this case it was necessary to show negligence, the court will likewise hold that there was negligence as well as inference of negligence, and again defendants have not set up that they were excused on account of delay. Sloop v. Railroad, 93 Mo.App. 605; Anderson v. Railroad, 93 Mo.App. 677; Lay v. Railroad, 57 Mo.App. 467; Nance v. Metcalf, 19 Mo.App. 190; Fell v. Mining Co., 23 Mo.App. 216; Whetstone v. Shaw, 70 Mo. 575; Walker v. Owens, 79 Mo. 568; Gilbert v. Railroad, 132 Mo.App. 697; Fullbright v. Railroad, 118 Mo.App. 482; Wright v. Railroad, 118 Mo.App. 392; Libby v. Railroad, 137 Mo.App. 276; Muir v. Railroad, 167 Mo.App. 542; Produce Co. v. Railroad, 168 Mo.App. 168; Holland v. Railroad, 133 Mo.App. 694; Holland v. Railroad, 139 Mo.App. 702; Decker v. Railroad, 149 Mo.App. 534. (2) No error was committed by the court in giving instruction number one for the plaintiff for the reason that instruction number two supplied the word negligent, and again the defendant accepted the theory set out in plaintiff's said instruction number one, by asking for the same declaration of law in its instruction number one; in fact this instruction did not seek or intend to cover the whole case, and is the law as far as it goes. Bell v. Railroad, 125 Mo.App. 667; Whetstone v. Shaw, 70 Mo. 575; Walker v. Owens, 79 Mo. 568; Tarnberger v. Railroad, 250 Mo. 46; Wilson v. Railroad, 169 Mo.App. 405; Hoover v. Western Coal & Mining Co., 160 Mo.App. 326; McCreary v. Railroad, 109 Mo.App. 570; Thompson v. Railroad, 136 Mo.App. 406. (3) Instruction number two given for the plaintiff is not erroneous and it was not error to give it. The law was correctly stated in it and instructions don't have to be in harmony if the correct instruction was given in favor of the winning party, or if on all the proof it appears the verdict is for the right party. Kelly v. Railroad, 153 Mo.App. 119; Baker v. Railroad, 122 Me. 533; Stone v. Hunt, 94 Mo. 475; Binedorn v. Railroad, 108 Mo. 439; Holland v. Railroad, 139 Mo.App. 702; Russell Grain Co. v. Railroad, 114 Mo.App. 496; Union Produce Co. v. Railroad, 168 Mo.App. 168; Cronan v. Railroad, 149 Mo.App. 392-393; McFall v. Railroad, 117 Mo.App. 477.
Plaintiffs shipped two cars of cattle on defendant's railroad from Sikeston and McMullin, Missouri, to the National Stock Yards, Illinois. There was an alleged negligent delay in the shipment so that the cattle did not arrive in time to be sold on the market of the day they should have been and extra shrinkage was caused and thus damaged plaintiffs who were compelled to hold the cattle over for the next day's market. Plaintiffs also had to buy extra feed to the amount of $ 6.80. Judgment was asked for $ 137.99, and a default judgment for that amount was rendered in the justice court. Upon trial anew in the circuit court ten jurors signed a verdict in plaintiffs' favor for $ 125. Defendant prosecutes this appeal and contends among other things that the trial court erred in refusing its proffered peremptory instruction.
The verdict being in plaintiffs' favor, it is to the evidence most favorable to them that we must look. We take it, therefore, that the delay in transit occurred and that the extra shrinkage was as great as plaintiffs claim and that they paid out the money for extra feed and that the verdict for $ 125, if there is liability at all, is well supported by evidence. It may also be conceded that had the shipment gone through in the number of hours usually necessary for such shipments between the points mentioned, the cattle would have arrived at the stockyards between eight and ten o'clock on the morning of January 7, 1913, and would have been ready to offer to buyers on that day's market.
The question for our determination, raised by the defendant when it offered a peremptory instruction, is as to whether there is any evidence whatever to support the charge of the petition that there was a negligent delay, for, unless that is shown to the extent of making out a prima-facie case in plaintiffs' behalf, there is no liability. This conclusion is so well founded upon decisions of our courts that an extensive review of what has been said on the subject would be entirely inexcusable. [See, McDowell v. Railroad, 167 Mo.App. 576, 152 S.W. 435; Hickey v. Railroad, 174 Mo.App. 408, 160 S.W. 24; Gregory v. Railroad, 174 Mo.App. 550, 160 S.W. 830; Ridgway v. Railroad, 161 Mo.App. 260, 143 S.W. 532; Otrich v. Railroad, 154 Mo.App. 420, 134 S.W. 665; Decker v. Railway Co., 149 Mo.App. 534, 131 S.W. 118; Clark v. Railway Co., 138 Mo.App. 424, 122 S.W. 318; Wernick v. Railroad, 131 Mo.App. 37, 109 S.W. 1027; Ecton v. Railway Co., 125 Mo.App. 223, 102 S.W. 575.] The ground upon which plaintiffs must recover is that there was an unreasonable time consumed in transit due to defendant's negligence, and "when the cause of action stands on the ground of negligence on the part of the carrier, the burden of proof is upon the plaintiff." [Witting v. Railway Co., 101 Mo. 631, 14 S.W. 743; Stanard Milling Co. v. Transit Co., 122 Mo. 258, 26 S.W. 704.]
In the petition the plaintiffs alleged that twenty-four hours is the reasonable, usual and ordinary time required for such a shipment between the points mentioned, but in their testimony put it at from eighteen to twenty hours and one of their witnesses said the usual time was from sixteen to twenty hours.
The plaintiffs did not accompany their stock. Both cars were loaded about 12:00 or 12:30 o'clock, January 6, 1913, on the same train and moved out almost immediately. Plaintiffs' witness Baker also had a shipment of cattle in this train, and accompanied his stock on that train as far as Crystal City, where he boarded a passenger train and did not see the cattle again until they were at the stockyards. There is no testimony as to the location of Crystal City, but it is a fact of which we take judicial notice that Crystal City is a town in Jefferson county (State v. Pennington, 124 Mo. 388, 392, 27 S.W. 1106; Comfort v. Ballingal, 134 Mo. 281, 35 S.W. 609; Johnson v. Hutchinson, 81 Mo.App. 299; Bishop v. Life Ins. Co., 85 Mo.App. 302), and that the boundaries of Jefferson county touch those of St. Louis county (State v. Pennington, supra) which adjoins the city of St. Louis, and the evidence shows that these cars were taken across the river from St. Louis to the National Stock Yards. So that it is shown that witness Baker was on this freight train during the greater part of the trip. He gave the following testimony: "There were no washouts or strikes or anything that I saw to prevent the train from running at its usual rate."
One of the plaintiffs went to St. Louis the night of January the sixth on a passenger train over the same track that the stock traveled, and testified that "there were no wrecks, strikes or anything on the road to cause delay to these shipments that I could see; the passenger went through all right." He did not know when the cattle reached St. Louis nor when they reached the stockyards, but knew they were unloaded at two o'clock on the seventh, too late for that day's market.
The evidence is somewhat confusing. Witness Baker testified Speaking of the time he left the stock at Crystal City, he testified: ...
To continue reading
Request your trial