The Toledo v. Lockhart

• Decision Date: 31 January 1874
• Citation: 71 Ill. 627,1874 WL 8739
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.JESSE LOCKHART.
• Court: Illinois Supreme Court

71 Ill. 627

1874 WL 8739 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.JESSE LOCKHART.

Supreme Court of Illinois.

January Term, 1874.

APPEAL from the Circuit Court of Macon county; the Hon. ARTHUR J. GALLAGHER, Judge, presiding. Messrs. NELSON & ROBY, for the appellant.

Messrs. POST & STERRETT, and Mr. JOHN W. SMITH, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action on the case, brought by appellee, against appellant, in the circuit court of Macon county, to recover damages for the failure of appellant to ship three car loads of cattle from Niantic, Illinois, to Buffalo, New York, within a reasonable time.

The cause was tried before a jury, and appellee obtained a verdict for $400. A motion was made for a new trial, and overruled, and judgment rendered upon the verdict.

It appears, from the evidence contained in the record, that appellant contracted with appellee to ship for him three car loads of cattle and four car loads of hogs, from Niantic to Buffalo, at certain specified rates. The stock was shipped on Saturday evening, December 2, 1871, and had there been no unreasonable delay on the route, it would have reached Buffalo on the next Wednesday. The cattle were unloaded at Toledo, and, on account of the inability of the railroad company to furnish cars, and the consequent delay at that place, they did not reach Buffalo until Saturday. The hogs, however, arrived on Wednesday.

On the trial, appellee proved that Wednesday and Thursday were the proper market days for cattle in Buffalo, and on Saturday there was no market. This evidence was objected to by appellant, and its admission is now assigned as error.

It is true, the question for the jury to determine was, whether there had been unreasonable delay on the part of appellant in shipping the cattle over the route, and not what the market days were in Buffalo; but if appellee shipped with the view to reach Buffalo on Wednesday and Thursday, and, by the fault of appellant, his stock did not arrive until Saturday, and, in consequence of the delay, he had to hold his stock, on expense, until the return of the market days the next week, in that view the evidence was proper.

Again, it is claimed by appellant the court erred in permitting appellee to show that empty cars passed Toledo, going west, while his cattle were at that point, waiting transportation. In this, there was no error. On the trial, appellant claimed that the cattle were delayed at Toledo for the reason that the railroad company had no empty cars at that time in which to forward the cattle. It was with a view to meet this position of appellant that the evidence was admitted, and, for that purpose, the evidence was legitimate.

The next point relied upon is, it is claimed by appellant that appellee's first instruction does not require the jury to believe the facts therein stated, from the evidence, and the instruction is not predicated on any fact established by the testimony.

We can not hold that the instruction is liable to either of the objections.

The second sentence of the instruction expressly provides, if the jury believe, from the evidence, etc., and this, by any fair or reasonable construction, would apply to each fact they were required to find by the instruction, without again repeating it. As to the other objection, we are unable to find any evidence in the record that plaintiff consented or directed that the stock of any other person that arrived at Toledo, after his, should be shipped in advance of his own. On the contrary, the evidence tends to prove that appellee was anxious to hasten the shipment of his cattle. He testifies that he went on that evening with the cattle to Toledo; took them out, desiring to reload that evening. Stratton, the agent at Toledo, said he could not get cattle-cars, but could get doubledeck hog-cars. He then left the cattle there, with instructions to Stratton to forward them as soon as he could get cars....