Tucker v. Pacific R.R. Co.

• Decision Date: 31 July 1872
• Citation: 50 Mo. 385
• Parties: THOMAS TUCKER, Defendant in Error, v. THE PACIFIC RAILROAD COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

50 Mo. 385

THOMAS TUCKER, Defendant in Error,

v.THE PACIFIC RAILROAD COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1872.

Error to Cooper Circuit Court.

Draffin & Muir, for defendant in error.

Geo. E. Leighton, for plaintiff in error.

The Boonville branch of the Pacific Railroad extends from Boonville to Tipton, a distance of twenty-six miles. It connects at Tipton with the main line of the road. Bunceton is a station on the branch, about ten miles north of Tipton. On the 13th of December, 1870, Thomas Tucker offered for shipment at Bunceton station five cars of hogs, which it may be conceded defendant agreed to receive and transport. When the train to Boonville passed north the conductor left word that he could not take them, and on the return trip he did not take them to Tipton, the reason assigned being that the hogs were bedded with straw, and that the engine he was using, though ordinarily sufficient for all the usual business of the road, threw fire too much under a heavy load to make it safe to run with so much straw in open cars in the rear of the engine. On arrival at Tipton the division superintendent at Jefferson was informed, an engine was sent extra to Tipton, the hogs of plaintiff brought on an extra train to Tipton, an extra to Jefferson, an extra to St. Louis.

If the defendant had taken the hogs on the regular train, they would have arrived at Tipton, if on time, to connect with a train on the main line whose card time of arrival at St. Louis was one o'clock P. M., December 15th. This train, however, by delays (which the court refused to allow to be explained), did not arrive, in fact, until 4:30 P. M., after the close of the market for the day. The extra train which brought the plaintiff's stock arrived at 11 P. M., ten hours behind the card time of the regular train, and six and a half hours after its arrival, in fact.ADAMS, Judge, delivered the opinion of the court.

This was an action on a contract of affreightment, whereby the defendant, at the town of Bunceton, received a quantity of hogs belonging to plaintiff on its cars, and agreed to deliver them at St. Louis in a reasonable time. The plaintiff gave evidence conducing to prove that the hogs were not delivered in due time, and that, if the hogs had been delivered in time, they would have brought more in the market by twenty cents on the hundred pounds than when actually delivered, and that by the delay the hogs had shrunk in weight.

The defendant offered to...