115 Kan. 132 | Kan. | 1924
The opinion of the court was delivered by
The plaintiffs recovered judgment against the defendant for damages caused by delay in the shipment of seven carloads of cattle. The defendant appeals.
Answers to special questions were returned by the jury .as follows:
“2. Is not ordinary shrink simply a loss of weight due to excretion of dung and urine? A. Yes.
“3. Are not the buyers on the Kansas City market able to make a fairly accurate estimate of the amount of shrink or fill? A. Yes.
“4. Do not the buyers on the Kansas City market take into consideration a shrink and fill in fixing the price for cattle? A. Yes.
“5. In case of shrink do not the buyers on the Kansas City market pay a higher price per pound, based on the amount of shrink? A. Yes.
“6. Do not the buyers on the Kansas City market, in case of fill, pay a lower price per pound, based on the extent of the fill? A. Yes.
“7. How much shrink, if any, do you find occurred on Sunday between 1:30 p.m. and the time the cattle were delivered and unloaded at the Kansas City Stock Yards? A. 8,072 pounds.”
2. The defendant complains of the refusal to submit to the jury the following special question requested by the defendant:
“How long would it be in the case of cattle which have been on full feed for a period of more than, four months, after they have been fed, before there would be an actual loss of flesh or tissue, as distinguished from loss of weight due to excretions such as dung and urine?”
The question might properly have been submitted to the jury; but the answer to the question, by itself or in connection with the other answers, could not have been contradictory to the general verdict for the reason that, although there was evidence of the defendant which tended to show that there is no loss of tissue in a fat steer until it has been without feed or water for seventy-two hours and that the buyers for the packers in Kansas City take into consideration the fill of cattle in making their purchases, paying a higher price for those that are empty than for those that are full, yet two-thirds of the cattle shipped by the plaintiffs were not sold to packers but were sold to speculators and feeders and the evidence did not tend to show that speculators and feeders take into consideration the full or empty condition of cattle in making their purchases. It was not reversible error to refuse to submit the question.
4. The defendant argues that its motion for a new trial should have been granted for the reason that the jury based its verdict in favor of the plaintiff for $645.72 on conjecture and speculation. This argument is based on the fact that the evidence of the defendant tended to show that fat steers do go seventy-two hours without feed or water before there is any shrink of tissue in the animal and that buyers for the packers take into consideration the amount of feed and water that is in the animal when it is purchased. These matters have been noticed under other heads and need not be again discussed. The verdict of the jury was based on evidence, and it was not error to deny the motion for a new trial.
The judgment is affirmed.