Warner v. St. Louis & San Francisco R. Co.
| Decision Date | 08 May 1911 |
| Citation | 137 S.W. 275,156 Mo.App. 523 |
| Parties | E. S. WARNER, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Webster Circuit Court.--Hon. C. H. Skinker, Judge.
Judgment reversed.
W. F Evans, Fred H. Wood and Mann, Johnson & Todd for appellant.
(1) The court should have given defendant's peremptory instruction to the jury to find the issues on its behalf. Because, even if it be conceded for the sake of the argument that there was a delay on defendant's part in the transportation and delivery of plaintiff's stock from Conway to National Stock Yards, Illinois, after plaintiff put said stock in defendant's yards at Conway, August 15 1910, yet there is no evidence in the record to show such delay on the part of the defendant was negligent. Mere proof of delay without more does not establish the charge if negligence. Decker v. Railway, 131 S.W. 118; Clark v. Railroad, 138 Mo.App. 424; Ecton v Railroad, 125 Mo.App. 223; McCrary v. Railroad, 109 Mo.App. 567; Wright v. Railroad, 118 Mo.App. 392; Haase Fish Co. v. Trans. Co., 143 Mo.App. 57. (2) The only question in this case is as to the reasonableness of defendant's schedule and rules governing the transportation of livestock, under which a pick up train is provided on each division and through stock trains are forbidden to stop to pick up local stock. The reasonableness of such rules is a question of law and the court erred in submitting the case to the jury. Chilton v. Railroad, 114 Mo. 88; Railroad v. Whitemore, 43 Ill. 420; 2 Elliott on Railroads, sec. 202; 3 Hutchison on Carriers, sec. 1077; Railroad v. Fleming, 14 Lea 128; Yorton v. Railroad, 54 Wis. 234; Railroad v. Rhoads, 25 Fla. 40; Vedder v. Fellows, 20 N.Y. 126; Railroad v. Hardy, 55 Ark. 134; Railway v. Motes, 117 Ga. 923; Gregory v. Railway, 100 Iowa 345; Railroad v. Colby, 60 Neb. 572; Railroad v. Lyon, 123 Penn. St. 140; Ran dall v. Railroad, 106 N.C. 612; Railroad v. Nuzum, 50 Ind. 141. Under the undisputed facts the court cannot say as a matter of law that defendant's schedule and rules are unreasonable. A railroad company has the right to distinguish between through and local trains and to decline to handle local business on the former. Logan v. Railroad, 77 Mo. 663; Commission v. Railroad, 203 U.S. 335; Railroad v. Randolph, 53 Ill. 510; Kyle v. Railway, 182 F. 613; Dietrich v. Railroad, 71 Pa. St. 432; Railroad v. Lightcap, 7 Ind.App. 249; Railroad v. Ludlam, 57 F. 481; Connel v. Railroad (Miss.) 7 Southern, 344; Browne v. Railroad, 12 S. E. (N. C.) 958; Railroad v. Bell, 87 S.W. 730; Hancock v. Railroad, 85 S.W. 210; Battle v. Railway (Ga.) 48 S.E. 337; Usher v. Railroad, 80 P. 956 (Kas.) . (3) Plaintiff was not entitled to suit his own particular convenience to have his stock handled otherwise than in accordance with the general rules provided for the handling of live stock, nor was the defendant required to stop its regular through trains or delay them to pick up his stock. Hibbard v. Railroad, 15 N.Y. 455; Railroad v. Kendrick, 40 Miss. 374; Railway v. Turner, 94 S.W. 214. (4) Every presumption of reasonableness attaches to the rules and schedule as made and they should not be disturbed by the court in the absence of the clearest testimony, which is wanting, and in establishing such rules the duty of the railroad company does not go beyond providing for the business ordinarily done, and there is no evidence in this case that trains provided were not adequate to take care of the business. Ballentine v. Railroad, 40 Mo. 491; 2 Elliott on Railroads, sec. 1576; Commission v. Railroad, 209 U.S. 108. (5) The failure of the plaintiff to have his live stock on hand ready for shipment on August 15, the day he desired to ship, and the hour when in the usual course of defendant's business such shipments as plaintiff's were taken up by defendant at Conway, was the negligence and fault of plaintiff, and no negligence or fault of defendant. Fowler v. Steam Co., 87 N.Y. 190; Hutchinson on Carriers (New Ed.), sec. 628, 511, 512.
L. C. Mayfield and Hamlin & Seawell for respondent.
(1) In the present case the question is just simply whether the delay from 11:00 a. m. Monday until the stock reached its destination at 12:00 p. m. Tuesday night was unreasonable without regard to any rule, regulation or schedule of the company, and whether or not it was reasonable was a question of fact for the jury. Vincill v. Railroad, 132 Mo.App. 722; Douglas v. Railroad, 53 Mo.App. 473; Sloop v. Railway, 93 Mo.App. 603; Ficklin v. Railroad, 117 Mo.App. 211; McCrary v. Railroad, 109 Mo.App. 567; Bushnell v. Railroad, 118 Mo.App. 635; Gilbert v. Railroad, 132 Mo.App. 697; Eads v. Railroad, 79 Mo.App. 511; Hamilton v. Railroad, 8 Mo.App. 597; Ball v. Railroad, 83 Mo. 574; Tucker v. Railroad, 50 Mo. 385; Chinn v. Railroad, 100 Mo.App. 576; 6 Cyc. 443, 428, 445, 524. (2) The appellant is estopped to allege error in submitting to the jury the question as to the reasonableness of any schedule for it submitted to the jury that issue by its instructions numbered, 6, 7, 10. Gayle v. Foundry Co., 177 Mo. 427; Duffy v. Railroad, 19 Mo.App. 380. (3) The case having been tried upon the theory that the reasonableness of the schedule and delay was for the jury, the appellant is in no position to complain of a theory adopted by it. Bragg v. Railroad, 192 Mo. 331; Kellar v. Ins. Co., 198 Mo. 440. (4) All the instructions upon this issue were in harmony with the instructions given at the request of the appellant and it is in no position to allege error in that respect. Lange v. Railroad, 208 Mo. 458; Smart v. City, 208 Mo. 162; Clippard v. Railroad, 22 Mo. 432. (5) As the court would have been compelled to declare this schedule unreasonable the submission of that question to the jury if appellant had not requested it, would have been a harmless error. Railroad v. Iron Works, 117 Mo.App. 152. (6) The respondent delivered his sheep to the appellant on the 15th of August at 11:00 o'clock, and they were received for shipment at that time by its agent at Conway. The evidence discloses that the agent took charge of the sheep and placed cinders and sheaf oats in the pen and respondent says that he did not know that no train other than the six o'clock train would take his stock. This was a delivery to the appellant. Lackland v. Railroad, 101 Mo.App. 420.
This is a suit instituted against the defendant, a railroad company, to recover damages which plaintiff alleges accrued to him on a shipment of lambs and sheep over the road of the defendant, from Conway, Mo., to the stockyards at East St. Louis, Ill., in August, 1910.
The facts are practically undisputed, and may be stated as follows: On the 13th day of August, 1910, the plaintiff notified the defendant's agent at Conway, that he would need, on August 15, double-deck cars sufficient to carry a shipment of 59 sheep and 177 lambs from Conway to said stockyards, and that he desired to ship said stock for the August 16th market. At the time this request was made, the plaintiff knew the defendant only had one train a day upon which stock was shipped from Conway, and that that train was due at Conway at 6:47 a. m. In fact, the demand for cars was made, and this suit was brought for the purpose of testing the reasonableness of the schedule that defendant had in force for operating its trains at the time the demand was made.
The stock was about ten or twelve miles from Conway and had to be driven to the station for loading. The weather was so warm that such stock had to be brought in during the forenoon, and accordingly plaintiff delivered his stock at the defendant's pens about eleven a. m. on the morning of the 15th. The agent had the cars which were to carry plaintiff's sheep, locked, so that the sheep could not be loaded during the day. In the evening, however, the cars were unlocked and placed at plaintiff's disposal. The sheep were loaded and left for St. Louis on the morning of the 16th, the cars containing them having been attached to the regular 6:47 train. The stock reached the stock yards in East St. Louis that night, and was unloaded and sold the next day.
The plaintiff's evidence shows that leaving the stock in the defendant's pens at Conway during the afternoon of the 15th, and all night of the 16th, had a tendency to worry the animals and thereby caused a shrinkage or loss of flesh; that the stock when shipped on the morning train, arrived in St. Louis at night and was unloaded and at once went to the troughs to drink, but would not drink but little after that, and therefore, when viewed by the buyer after ten o'clock the next day, presented a shrunken and rough appearance, and a less price was obtained on account thereof.
During the night of the 15th, the evidence shows two freight trains passed through Conway. One of these trains carried thirty carloads of stock, and did not stop, and the other carried five carloads of stock with other freight, and stopped and set out a car that had become disabled. Conway was not a stopping place for either of these trains, and the one stopped only for the purpose of setting out a car that was dangerous to permit to longer remain in the train.
The plaintiff offered testimony tending to prove that prior to March 13, 1910, the company had maintained a schedule and provided a train for shippers at Conway, at about the hour of eleven o'clock a. m. that they could load their stock on that train and it arrived at the stockyards the next morning, was unloaded, went to the troughs to drink, filled up on water and presented a round and plump appearance to the buyer.
The above contains a fair statement of plaintiff's pleading and his evidence.
The defendant showed that its system...
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