79 Mo. 296 | Mo. | 1883
This was an action for damages alleged to have been caused by delay in the shipment of three cars of sheep from Centralia, Missouri, to Venice, Illinois, opposite the city of St. Louis.
It was admitted that the sheep were shipped under a special contract, by which plaintiff “ agreed to assume the risk of all injuries which said sheep, or any of them, might receive or sustain from delays in the transportation thereof, and that he would assume all risks for damage of whatever kind which might be occasioned or sustained by reason of any delay in such transportation.” Plaintiff testified that defendant declined to accept the sheep for transportation unless he would sign such contract, though he did not read the contract, nor did the agent of defendant inform him as to its contents. The evidence showed that there was a delay of thirty-six hours beyond the usual time between Centralia and Venice. There was testimony as to the damages sustained by reason of the delay.
Defendant showed, by evidence, that just previous to the shipment of these sheep the bridge over the Missouri river at St. Charles was broken down, and all freight over
At the request of the plaintiff', the court gave the following instructions:
1. If the jury shall believe from the evidence in this case, that plaintiff shipped, upon defendant’s cars, at Centralia, the sheep mentioned in the petition, and defendant undertook to transport the same over its road to Venice, as named in said petition, and within a reasonable time, and failed to do so, or that they so undertook so to do in a careful and prudent manner, and carelessly and negligently failed so to do, and plaintiff' was actually damaged, then the verdict must be for plaintiff'.
2. If the jury shall find the issues in this ease for plaintiff', then in determining his damages they will consider the loss of the weight of said sheep by reason of said delay in said transportation thereof, if any, together with the difference in the price or market value of the sheep at the time they should have arrived in said market, and the time in which they did arrive, if any, together with all extra cost and expenses to plaintiff by reason of such delay in said transportation, if any, he was compelled to pay and make, as well as any loss or depreciation in the market value of said sheep, if any, by reason of the careless and negligent running and management of said cars, if the jury shall find from the evidence such carelessness and negligence, and find the amount thereof and fix the same in dollars and cents, but in no event will the amount so fixed exceed the sum of $630.90, as mentioned in plaintiff’s petition.
3. Although the jury may believe from the evidence that plaintiff' executed the contract offered in evidence by
4. If the jury shall believe from the evidence that plaintiff shipped the sheep mentioned in his petition, and defendant undertook so to do, and there was no specific contract as to the time within which said transportation should be completed, and said sheep be delivered, then the law would require the same to be done and completed within a reasonable time, and if when defendant so received and undertook such transpoi’tation, it knew it had not the facilities for the performance of its said undertaking in such time, by reason of a want of proper and sufficient means of transportation, or other causes within its control, and by reason of want of such facilities, or other causes, said undertaking of defendant was not performed withiir such reasonable time, then such delay would be the result of negligence on the part of defendant in the premises, and it would be liable for such damages as plaintiff might suffer from such failure to perform said undertaking,, not exceeding $630.90.
At the request of the defendant the court gave the following instruction:
If the jury believe from the evidence that at the time defendant received plaintiff’s sheep for shipment, there was an extraordinary and unexpected pressure of business on defendant’s road, they may take that fact into consideration as a circumstance' in determining what was a reasonable time in which plaintiff’s sheep should have been shipped to Yenice.
The following instruction, asked by the defendant, was refused by the court:
If the jury believe from the evidence that by reason of
The first instruction given at the request of the plaintiff is faulty in allowing a recovery for a failure to transport the sheep in a reasonable time, although the delay may not have been occasioned by the negligence of the defendant. It authorizes a. recovery if the defendant undertook to transport the sheep “ within a reasonable time and failed to do so.” This portion of the instruction is inapplicable to the case made by the pleadings and the evidence.
The second instruction for plaintiff should be modified so as to restrict the finding of the jury to the damages resulting from such delay as was occasioned by the negligence of the defendant as distinguished from the damages, if any, resulting solely from the delay caused by the unusual influx of business.
The fourth instruction given for plaintiff requires some qualification. Delay occurring as therein stated would not be a negligent delay, although, in the absence of a special contract of exemption, the defendant might be liable therefor. In view of the contract in this case it was manifestly improper.
For tbe errors indicated, the judgment will be reversed and the canse remanded.