145 Ky. 7 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
Appellees shipped a car load of blooded colts on June 15, 1905, -by express from Midway, Kentucky, to Sheepshead Bay, New York, and brought this suit against the Express Company to recover damages on account of the delay of the stock in shipment whereby they were injured. On a trial of the case before a jury there was a verdict for the plaintiffs in the sum of $5,499. The court entered judgment on the verdict and refused a new trial. The express company appeals.
On the application of the owners of the stock, the express company sent a car to Midway on which the stock
It is insisted for the express company that there was no proof of negligence on its part in furnishing a car that was out of order, or that its negligence caused an unreasonable delay in the transportation, or that the colts
The court instructed the jnry, among other things, as follows:
“If the jury believe from the evidence that the defendant failed to exercise reasonable care to furnish plaintiffs with a car safe and suitable for the transportation of their stock from Lexington to Sheepshead Bay, and that by reason of such failure a car was furnished which was unsuitable or unsafe for the transportation of said stock from Lexington to Sheepshead Bay, and .that by reason of the unsafe or unsuitable conditions of said car, it was detained at Cincinnati for repairs, and that by reason of said detention or by reason of any delays on the route resulting from said detention at Cincinnati, plaintiffs’ stock was unreasonably delayed in their transportation from Lexington to Sheepshead Bay, the jury should find for the plaintiffs.
“If the jury find for.the plaintiffs, they should find for them * * * in such sum * * * as was the difference, if any, between the reasonable market value at Sheepshead Bay of the stock * * * as it was when received * * * from the defendant, and the reasonable*10 market value of said stock as it then would have been if said stock bad not been injured by the unreasonable delay, if any, in its transportation. ”
It is insisted for tbe defendant were told to find for tbe plaintiffs if the stock was unreasonably delayed in tbeir transportation and that they were authorized to' find a, verdict for tbe plaintiffs although tbe stock were not injured by reason of tbe delay. But it will be observed that in giving tbe measure of damages, tbe court told tbe jury that they could only find for tbe plaintiffs tbe diminution in tbe reasonable market value of tbe stock by tbe unreasonable delay, if any, in its transportation. Under tbe two- instructions which must be read together the diminution in value of tbe stock by reason of tbe delay was tbe only thing that tbe jury could take into consideration.
Tbe defendant instructions:
“Tbe jury are instructed that tbe testimony as what prices tbe horses in question brought at the sale at Sbeepsbead Bay is not to be considered by them for tbe purpose of definitely fixing a standard by which to ascertain tbe depreciation in value, if any, but only as a fact to be considered with others in -determining whether, or not there was any depreciation in value, and, if so, its extent. In other words, if tbe jury find for tbe plaintiffs tbe measure of damages is not the- difference between what said horses brought at said sale and what their, value would have been if uninjured by tbe trip, but is tbe extent, if any, to which tbeir fair vendible value bad been depreciated by any breach of duty (if there was such) on defendant’s part.
“If at tbe time in question jury believe from tbe evidence that they were in such condition as that a fairly prudent and reasonable man would not, under all tbe circumstances in proof have offered, them for sale, and that it could not have been reasonably expected that they would realize what they were reasonably worth even in tbeir then condition, the jury should not take into consideration at all the prices which they brought at-said sale, but should fix tbe damage (if they find for the plaintiffs) wholly irrespective of said, prices.”
Tbe court refused to give tbe appellant complains. It-insists that..there was evidence
Under the instructions of the court the selling price in New York was not the criterion by which the jury were to make their verdict. The reasonable market value of the stock if uninjured by the unreasonable delay, and its reasonable market value when injured by the unreasonable delay, were the criteria by which the jury were to be governed. While the instructions asked would have made the matter plainer, under all the evidence we do not see that if given, they could have had a material effect upon the finding of the jury. The owners of the stock were experienced horsemen and seem to have done the best they could, or to have used their best judgment, and we do not think that the instructions if given, would have affected the result.
Judgment affirmed.