Vail v. Pacific R.R.

• Decision Date: 31 October 1876
• Citation: 63 Mo. 230
• Parties: H. M. VAIL, Respondent, v. PACIFIC RAILROAD, Appellant
• Court: Missouri Supreme Court

63 Mo. 230

H. M. VAIL, Respondent,

v.PACIFIC RAILROAD, Appellant

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jackson Circuit Court.

J. N. Litton & Ewing, with Smith & Pope, for Appellant, cited: Winters vs. Hann. & St. Jo. R. R. Co., 39 Mo. 468 (latter part of opinion); Sparr & Green vs. Wellman, 11 Mo. 230; Nemark vs. Liverpool & London Fire and Life Ins. Co., 30 Mo. 160.

Tichenor & Warner, for Respondent, cited: Hill vs. Sturgeon, 28 Mo. 323; Wolf vs. The Am. Exp. Co., 43 Mo. 421; Morrisey vs. Wiggins Ferry Co., 43 Mo. 385.

WAGNER, Judge, delivered the opinion of the court.

This was an action to recover damages from the defendant on account of the loss, by freezing, of certain trees, which, it was alleged, occurred by reason of defendant's negligence and delay in not transporting them as it was its duty to do.

The evidence tended to show that defendant received one thousand peach trees and fourteen pear trees at Lee's Summit, to be shipped to plaintiff at Independence, a distance of from twelve to fourteen miles. They were loaded on defendant's cars on Friday in the afternoon, and there were three freight trains per day, one at 10 A. M., one at 5.33 P. M., and one at 9 P. M., passing Lee's Summit to Independence. The trees did not reach this last place until the night of Saturday, and they laid in the cars until Monday, when they were delivered to the plaintiff in a frozen condition.

Defendant's agent was requested to send the trees forward the same evening on which he received them, and there were two freight trains which went westward on the same evening after the trees were put upon the cars. Plaintiff was present at the depot at Independence, waiting to receive his trees on Friday evening, and on Saturday morning and evening, and did not leave till after dark. The trees arrived that evening after he left, but he was not notified and did not get them till the next Monday morning Friday was pleasant, and it began to turn cold on Saturday afternoon, and Saturday night and Sunday were cold, and the weather was freezing.

The trial was before the court and a jury, and the court refused to allow anything as damages, except the market value of the trees. There was a verdict for the plaintiff.

For the plaintiff the court gave two instructions:

The substance of the first was, that if the jury found from the evidence that the trees were delayed in their delivery, and that such delay was unnecessary, then they should find for the plaintiff, providing they believe from the evidence, that because of such delay the trees were frozen, and by such freezing they were damaged or killed.

The second instruction declared that, although the jury might believe from the evidence that the delay, if any, in forwarding the trees to plaintiff, was occasioned in whole or in part by a lack of proper or sufficient appliances for transportation on the part of the defendant, yet that furnished no excuse for the delay.

For the defendant the court instructed the jury, that if they believed from the evidence that the trees in question were transported in a reasonable time, or were frozen within what would have been a reasonable time, for transporting the same from Lee's Summit to Independence, and that the agents and servants of defendant, during such reasonable time, had placed and kept the same in a sound, good, close box car, which...