Yount v. Wabash Railroad Company
| Decision Date | 03 May 1909 |
| Citation | 119 S.W. 1,136 Mo.App. 697 |
| Parties | J. F. YOUNT, Respondent v. WABASH RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Chariton Circuit Court.--Hon. J. P. Butler, Judge.
AFFIRMED.
Judgment affirmed.
James L. Minnis and James C. Wallace for appellant; Crawley & Rucker of counsel.
(1) In the first place there is not one word of evidence in support of the allegation that the car was delayed in transit. (2) The consignment being made to the owner of the goods and he being advised of the time ordinarily required to make the run, it was his duty to be on hand when the car arrived, and to unload it within a reasonable time thereafter. Hutchinson Carriers, sec. 386; Freeman v. Railroad, 118 Mo.App 534; Rankin v. Railroad, 55 Mo. 167; Gashweiler v. Railroad, 83 Mo. 112; Eaton v. Railroad, 12 Mo.App. 386; Buddy v. Railroad, 20 Mo.App. 206; Herf, etc., Co. v. Railroad, 70 Mo.App. 274; Ross v. Railroad, 119 Mo.App. 290; 4 Elliott Railroads, sec. 1464. (3) Respondent was under no contractual obligation to deliver the nursery stock to his customers on any particular day. The orders taken by his salesmen were silent as to time of delivery. The law gave him a reasonable time to deliver--and that test was unaffected by his failure to begin delivery on the precise day selected by him for that purpose. 2 Page, Cont., sec. 1154; 2 Pars., Cont. (9 Ed.), *p. 535, bot. p. 687; 2 Mechem, Sales, secs. 1129, 1130; Tiedeman, Sales, sec. 100.
J. A. Collet for respondent.
(1) That the car of nursery stock was not delivered to plaintiff's agent until more than two days after it should have been delivered was abundantly proven and not disputed by any witness. It was not sufficient that the car reached Springfield on time. If left in the yards where it could not be unloaded, it had just as well been left at some station on the road between Brunswick and Springfield, or at Brunswick where it was loaded, so far as the practical effect was concerned. The trial court's instruction submitting this question to the jury was proper. Russell Grain Co. v. Railroad, 114 Mo.App. 488; Ratliff Bros. v. Railroad, 118 Mo. 644; Ingwersen v. Railroad, 116 Mo.App. 139; Bushnell v. Railroad, 118 Mo.App. 618; Commission Co. v. Railroad, 80 Mo.App. 164. (2) There was abundant evidence showing that plaintiff sustained loss largely in excess of the amount awarded by the jury, and that he used such care and employed such means as a reasonably prudent person would have used under the circumstances to avert damage and injury, and there was not a word or syllable of evidence to the contrary. These questions were finally and conclusively settled by the verdict of the jury. Culbertson v. Hill, 87 Mo. 553; Hull v. Railroad, 60 Mo.App. 593; State v. McGuire, 193 Mo. 215; Brecker v. Fillingham, 209 Mo. 578; Buddy v. Railway, 20 Mo.App. 206. (3) The issue advanced by appellant in its brief, that the "Frisco" was only a warehouseman, and that defendant's liability as a carrier ended when the car was landed at Springfield on time, was not tendered in the trial of the case in any way, shape or form. The theory upon which the case was tried in the trial court is the theory upon which the case will be disposed of here. Kilpatrick v. Wiley, 197 Mo. 123; Atterbury v. Hopkins, 122 Mo.App. 172; James v. Casualty Co., 113 Mo.App. 622; Cobb v. Houston, 117 Mo.App. 645.
This action was instituted to recover damages resulting to plaintiff in the delay in complete transportation of a carload of nursery stock from Brunswick, in northern Missouri, to Springfield, in southern Missouri. The judgment in the trial court was for the plaintiff.
It appears that plaintiff had taken orders of a number of people in the vicinity of Springfield for delivery to them at Springfield of various kinds of fruit trees on Tuesday October 29, 1907. The car was loaded at Brunswick in the afternoon of Wednesday preceding. Defendant's agent at Brunswick was notified of the purpose of the shipment and that it would take some time after arrival of the car at Springfield to unload and prepare the stock for delivery to the several purchasers as agreed upon with them. It is of no consequence to look into the precise time that the car got into Springfield since it is conceded to have arrived in due time. The complaint is as to delay in the delivery to plaintiff. His agent called at the railway office early Monday morning; he found the car was in the freight yards, whereupon he paid the...
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