Vencill v. Quincy, O. & K. C. R. Co.

• Decision Date: 19 October 1908
• Citation: 112 S.W. 1030,132 Mo. App. 722
• Parties: VENCILL v. QUINCY, O. & K. C. R. CO.
• Court: Missouri Court of Appeals

112 S.W. 1030

132 Mo. App. 722

VENCILL v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

October 19, 1908.

1. CARRIERS (§ 218) — TRANSPORTATION OF LIVE STOCK—INJURY—NOTICE—TIME.

Where notice of injury to plaintiff's cattle was mailed in time to have reached defendant's claim agent within the time limited by the transportation contract in the ordinary course of mail, there was a reasonable compliance with the contract provision to give notice within 10 days of the time the cattle were unloaded.

2. CARRIERS (§ 218)—WAIVER.

Notice of injury to cattle, having been mailed in time to reach defendant's claim agent within the time limited by the contract, was not delivered until two days beyond the time so fixed. Defendant's general freight agent acknowledged receipt of the notice, did not mention that it had been received too late, but asked for further information, promising to endeavor to arrange an equitable settlement without delay. Held to indicate an intention to waive notice entertained prior to the expiration of the period prescribed therefor.

3. NOTICE (§ 8)—TIME—WAIVER.

Waiver of notice required to be given with in a specified time to be effective must be made within the time limited for such notice, but whether such waiver has been accomplished is a question of intention.

4. CARRIERS (§ 213)—INJURY TO CATTLE—DELAY—SNOWSTORM.

A carrier was not liable for injuries to cattle by delay in transportation caused by a snowstorm obstructing the tracks.

5. CARRIERS (§ 213)—LIVE STOCK—DELAY IN TRANSPORTATION—DEFECTIVE ENGINE.

Where the injury to an engine which caused a delay in the transportation of plaintiff's cattle was due either to negligence of defendant's employés in making couplings or to a defective engine end sill, and there was no evidence that the engine had been properly inspected before it left defendant's division point, defendant was responsible for such delay, under the rule that only such causes as cannot be reasonably anticipated, controlled, or avoided by reasonable care will excuse a carrier's unusual delay.

6. CARRIERS (§ 230) — TRANSPORTATION OF LIVE STOCK—DELAY—QUESTION FOR JURY.

Evidence of a carrier's unnecessary delay in the transportation of plaintiff's cattle resulting in injury to them held to require submission of such issue to the jury.

7. CARRIERS (§ 219) — TRANSPORTATION OF CATTLE — DELAY — CONNECTING CARRIERS— STOCKYARDS COMPANY.

Where plaintiff's cattle were consigned to a commission firm to receive the cattle from the chutes at the stockyards, the carrier was liable for a delay of 1½ hours while the stockyards company transported the cattle as a connecting carrier from the original carrier's terminal station to the cattle chutes.

8. DAMAGES (§ 62)—DUTY TO REDUCE—EVDENCE.

Evidence that defendant's station agent informed plaintiff, after his cattle had been placed in a train, of a breakdown which would cause delay, that defendant would not be able to deliver the cattle in time for market on the next morning, and that he had better unload the cattle and wait for the next day's train, was admissible to show that plaintiff refused to avail himself of an opportunity to minimize his damages under the rule that a party is bound to protect himself from the injurious consequences of the wrongful act of another if he can do so by ordinary effort and at reasonable expense.

9. APPEAL AND ERROR (§ 1058)—EXCLUSION OF EVIDENCE—CURING ERROR.

Erroneous exclusion of evidence of an offer by defendant's agent to permit plaintiff to unload his cattle and wait for transportation until the succeeding day was cured by the subsequent admission of evidence of such offer.

10. WORDS AND PHRASES—"DOUBLE HEADER."

The term "double header," as used in the operation of railroads, means a train drawn by two engines.

Appeal from Circuit Court, Grundy County; Geo. W. Wannamaker, Judge.

Action by Robert L. Vencill against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. G. Trimble and Hall & Hall, for appellant. Hugh C. Smith, for respondent.

JOHNSON, J.

Plaintiff sued defendant, a common carrier, for damages alleged to have resulted from defendant's negligent failure to transport his cattle, consisting of 47 head, from Galt to South St. Joseph, within a reasonable time. Plaintiff claims the cattle were received by defendant for shipment at 4 o'clock in the afternoon of December 11, 1904, and should have arrived at their destination at 10 o'clock or earlier on the same day, but, on account of defendant's negligence, they did not arrive until 12 o'clock the next day—too late for the morning market; that he thereby lost the benefit of the morning market, and in the afternoon he sold 33 head of the cattle, at which time the market had declined; that he was unable to sell all of said cattle on that day, but was compelled to keep 14 head, which were sold on the market the following day, the price in the meantime having further declined; that, owing to the careless manner in which the cattle were transported, they were bruised and depressed, which produced a shrinkage in weight, thereby causing plaintiff additional loss; and, further, that he was subjected to the expense of feeding the cattle that were not sold the day of arrival. The answer was a general denial and the further defense that plaintiff shipped his cattle over defendant's railroad under the terms of a certain written contract (attached to and made part of the petition), the terms of which plaintiff failed to keep and perform, and that any damages which may have been sustained were caused by plaintiff's own negligence and lack of care and attention to said cattle. Further, it was claimed that plaintiff failed to give to defendant notice of damages as required by the terms of the contract. To this answer plaintiff replied by a general denial. It appears from the evidence that the cattle were loaded between 5 and 6 o'clock in the evening of the day mentioned, and the train that was to take them arrived at Galt about 7 o'clock, the cars in which they were loaded were placed therein, and the train pulled on to the main line. The train was what is called a "double header"; i. e., drawn by two engines. In putting these cars in the train and switching, the end sill of one of the engines was broken, which disabled the front drawbar so that it became unsafe to use the engine. The employés of defendant telegraphed to Milan for another engine which came in time for the train to start about 11:30 p. m. The night was stormy, and enough snow fell to retard the progress of the train. Some time was lost at Pattonsburg, and the train did not reach Osborn until about 8 o'clock the next morning, when the cattle were switched to the Hannibal & St. Joseph Railroad, reaching the Burlington station in South St. Joseph about 10 o'clock a. m., and being delivered to the stockyards company about one hour and a half there-after. They were received by plaintiff's consignees about 12 o'clock, were put upon the market, 33 head sold that day, and the remaining 14 head held over and sold the next day. The evidence tended to sustain plaintiff's allegation of damages in the most important particulars, and, further, to show that the injury to the engine was occasioned by a defect in the timber or by striking too hard in coupling. There was no positive proof that the damaged engine had been inspected before it left Milan. The evidence of defendant tended to show that, owing to the condition of the track caused by the snow, eight hours would have been a reasonable time for the train to have arrived at St. Joseph after it left Galt. There was a controversy at the trial as to whether plaintiff had given defendant proper notice of the injury to his stock. It was shown that Hugh Smith, attorney for plaintiff, mailed such notice in an envelope properly addressed and deposited in the post office at Trenton on December 21, 1904, and that in the usual course of transmission it should have been delivered to the person addressed the next morning. This notice was addressed to the freight claim agent of defendant, but it was shown that it was received by L. F. Moore, the general freight agent, who acknowledged its receipt on December 25th and asked for further information; and it was further shown that subsequent correspondence was had between said agent and plaintiff concerning the claim. By the terms of the written contract to which reference was made in the answer of defendant, it was provided that "the said railroad company shall in no case be liable for any loss or damage to said animals, unless a claim shall be made in...