Sloop v. Wabash Railroad Company
| Decision Date | 07 April 1902 |
| Citation | 67 S.W. 956,93 Mo.App. 605 |
| Parties | JOHN SLOOP, Appellant, v. WABASH RAILROAD COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Schuyler Circuit Court.--Hon. N. M. Shelton, Judge.
REVERSED AND REMANDED.
Saxbury Fogle & Eason for appellant.
(1) The only question before this court is: Did the trial court err in giving defendant's instruction in nature of a demurrer to plaintiff's evidence? The rule is thus: Where there is any evidence, however slight it may be, and whether it be direct or inferential, its weight and sufficiency must be determined by a jury. Twohey v. Fruin 96 Mo. 104; Keown v. Railroad, 141 Mo. 86; George v Railroad, 40 Mo.App. 433; Taylor v. Short, 38 Mo.App. 21; McQuillins Pleading and Practice, sec. 796; Thompson on Trials, sec. 2246, and many Missouri cases cited thereunder. (2) Even though the court might be of the opinion that the weight of the evidence was altogether insufficient to permit the cause to go to the jury, it has no right to say so. Gannon v. Gas Co., 145 Mo. 502; Bowen v Lazalere et al., 44 Mo. 383; Herriman v Railroad, 27 Mo.App. 446. (3) The instruction offered admits everything which the evidence fairly tends to prove, including every inference of facts deducible therefrom, which a jury might with propriety have inferred. Davis v. Clark, 40 Mo.App. 515; Walton v. Railroad, 32 Mo.App. 634; Young v. Webb City, 150 Mo. 333; Bank v. Simpson, 152 Mo. 638; Bueschling v. Gas Light Co., 73 Mo. 219; Smith v. Hutchinson, 83 Mo. 683. (4) When two or more facts are established by plaintiff, from which other facts tending to support his case may be inferred, the court should not direct a verdict. Walton v. Railroad, 32 Mo.App. 634; In re Ripp (Mich.), 29 N.W. 517. (5) If plaintiff's evidence made a prima facie case, then instruction No. 1 should not have been given. Finch v. Ullman, 105 Mo. 255; Gannon v. Gas Co., 145 Mo. 502; Bowring v. Railroad, 90 Mo.App. 324. (6) The burden to overthrow this was upon defendant. Gibson v. Zimmerman, 27 Mo.App. 90; Dowling v. Allen, 6 Mo.App. 195; s. c., affirmed in 74 Mo. 13; Gannon v. Gas Co., 145 Mo. 502. (7) There was a difference of five hours in the arrival of plaintiff's cattle and those of John B. Sloop's. All were in Decatur in same train at same time. Why this difference? This was a question that should have been answered by the jury. Olsen v. Railroad, 152 Mo. 426; Hance v. Express Co., 48 Mo.App. 179; Haynes v. Railroad, 54 Mo.App. 582; Witting v. Railroad, 101 Mo. 641; Schureman v. Railroad, 88 Mo.App. 183, and cases therein cited.
Geo. S. Grover for respondent.
(1) The defendant was not bound to keep the cars, containing plaintiff's cattle moving onward in the same train at all events. Clark v. Railroad, 39 Mo. 184. (2) The undisputed evidence shows that plaintiff's commissionmen held his cattle over another day, with a view of speculating upon an expected advance in price, which did not materialize. For this error in judgment on the part of his agents the plaintiff is not, as the learned judge below correctly held, entitled to recover. Perry v. Railroad, 89 Mo.App. 49.
It was alleged in the petition that on October 10, 1900, the plaintiff delivered to the defendant fifty-two head of fat cattle which the latter agreed, for and in consideration of certain charges, to safely and quickly carry from Queen City, in this State, to Chicago, in the State of Illinois, within a reasonable time after the delivery thereof. It was therein further alleged that had said cattle been carried to the point of destination within a reasonable time they would have reached there in time to be sold on the morning market of the next day--October 11--but that defendant so carelessly and negligently conducted itself in the premises that it did not complete said carriage within a reasonable time, nor in time for said cattle to be sold on said morning market of October 11; in consequence of which plaintiff was compelled to hold said cattle until the following day--October 12; that the morning market at said point had in the mean-time declined twenty cents on the hundred pounds, at which reduced price plaintiff was compelled to sell his said cattle on said October 12; and that by reason of such delay in the carriage and the fluctuation in the market price, plaintiff lost $ 137.46; and that by reason of such delay plaintiff was compelled to lay out certain sums of money for feed for said cattle, etc.
It appears from the evidence that plaintiff's cattle were loaded into three cars and those of John B. Sloop, another shipper, in four cars. The seven cars were hauled on a special train which started from Queen City at five o'clock on the morning of October 10, 1900. This train arrived at Chicago about seven o'clock on the next morning--October 11--with the four cars carrying the cattle of John B. Sloop, but the cars carrying plaintiff's cattle were left somewhere between Hannibal and Chicago and did not reach the latter place until 9:45, nor the stockyards until 10:05 of that morning. It appears further that it requires from forty-five minutes to two hours to get a shipment of cattle, after its arrival, in condition to be offered for sale on the market. It still further appeared that plaintiff's cattle arrived too late to be offered or sold on the morning market, and though the market on that day remained open until three o'clock in the evening, neither the plaintiff nor his commission merchants could find a purchaser for them so that plaintiff was compelled to carry them over to the next day and to purchase feed for them at a considerable outlay. There was also some evidence introduced tending to show that the market price of cattle of the class to which plaintiff's belonged had declined about twenty cents on the hundred pounds between the day they arrived and the following day.
At the conclusion of the plaintiff's evidence the court gave an instruction which declared to the jury that upon the pleadings and evidence the plaintiff was not entitled to recover; and this action of the court is made the basis of the plaintiff's assignment of error, which, if sustained, must accomplish the reversal of the judgment.
It has been seen that the action is founded on a contract of affreightment to carry the plaintiff's cattle to the place of destination within a reasonable time, and not within or by a specified time. The plaintiff's cattle were fat and he with the other shipper was given a special train so that a rapid transit could be effected to the market...
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