Wright v. Chicago, B. & Q. Ry. Co.

• Citation: 94 S.W. 555,118 Mo. App. 392
• Court: Missouri Court of Appeals
• Decision Date: 07 May 1906
• Parties: WRIGHT v. CHICAGO, B. & Q. RY. CO.

94 S.W. 555

118 Mo. App. 392

WRIGHT v. CHICAGO, B. & Q. RY. CO.

Kansas City Court of Appeals. Missouri.

May 7, 1906.

1. CARRIERS — DELAY IN TRANSPORTATION — NEGLIGENCE—EVIDENCE—SUFFICIENCY.

Though mere delay is not evidence of negligence in transportation, where the fact of delay is supplemented by evidence of the cause it may show that it was negligence.

2. EVIDENCE—BOOKS OF ACCOUNT.

In an action against a carrier for negligent delay in the transportation of cattle, entries in the books of a commission company as to the weights of the cattle, such entries being made from the scale tickets, were admissible in evidence, though the commission company was the agent of plaintiff in the transaction in regard to the cattle.

3. SAME—COPIES—BOOKS OF ACCOUNT.

Where such books were in another state, it was proper to receive verified copies of the entries.

4. SAME.

In an action against a carrier for negligent delay in the transportation of cattle, carbon copies of scale tickets, showing the weights of the cattle, were admissible in evidence.

5. CARRIERS—CARRIAGE OF LIVE STOCK—CONTRACT OF SHIPMENT—LIMITATION OF LIABILITY—CONSTRUCTION.

Where a contract for the shipment of cattle provided that no loss or damage to the same should be allowed, unless a written claim should be made within 10 days after the cattle should have left the car, it meant damage before the cattle left the cars, and did not apply to a claim for loss of market and expenses consequent upon the delay.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Action by William R. Wright against the Chicago, Burlington & Quincy Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

H. T. Herndon and J. G. Trimble, for appellant. E. C. Hall and W. S. Herndon, for respondent.

ELLISON, J.

This is an action for damages on account of alleged negligent delay in the transportation of cattle to the Chicago market. The trial court gave a peremptory instruction to allow the plaintiff only nominal damages. The plaintiff's motion to grant him a new trial was sustained, and from that order defendant has appealed.

It appears that plaintiff shipped over defendant's road seven car loads of beef cattle from Trimble, Mo., to Chicago, Ill. That four of the cars were consigned to Strahorn, Hutton, Evans Commission Company, and the remaining three to the Lee Live Stock Commission Company; each company doing business at the Union Stock Yards at Chicago. The evidence tended to show that the cattle were loaded at Trimble into a special cattle train, and left that station at 5 o'clock of the evening of October 5, 1903, and arrived at Quincy next day, several hours after the usual time for making that station. That they left Quincy in the afternoon and arrived at Chicago after 1 o'clock p. m., when they should have gotten there at about 9 o'clock in the morning. That in consequence of the delay in getting into Quincy there was no time for unloading, resting, and feeding the cattle before starting on for Chicago. The evidence tended to show a delay in the run from Quincy to Chicago of from three to four hours, and that in consequence plaintiff failed to get the cattle on the favorable market of that day. The result was that both lots of cattle were held over; those consigned to the Lee Company until the next day (the 8th of October) when they were sold, and those consigned to the Strahorn Company until the following Monday, the 12th of the month. They were sold on the 8th and the 12th, but at less than if they had been transported with ordinary dispatch and sold on the morning market of day of arrival. That this loss to the plaintiff was occasioned by the fact that the cattle by being delayed were deprived of the usual time for rest, water, and feed at Quincy, whereby they shrunk in weight, and by further delay were not put into Chicago in time for the early and...