53 Mo. App. 473 | Mo. Ct. App. | 1893
— This action is in two counts. The first is-for the damages occasioned by delay in carrying six carloads of beef cattle, shipped September 18, 1889, over the defendant’s road from Lathrop, Missouri, to Chicago, Illinois, whereby it was claimed the cattle shrunk in weight and the market price thereof declined on account of the delay in getting them into the Chicago-market; and the second is a like complaint by reason of a shipment!January 14, 1890, of five cailoads of' cattle from St. Joseph, Missouri, to Chicago.
At the close of the evidence defendant asked an instruction in the nature of a demurrer thereto, but it, was overruled; and instead the court gave several instructions covering both sides of the case and to the-effect that, when defendant received" plaintiff’s cattle to-be transported to Chicago from Lathrop and from St. Joseph respectively, it then devolved on defendant tocany said cattle to Chicago within a reasonable time and without unreasonable delay. If defendant had-so done then the jury was directed to find for the defendant, otherwise the instruction required the jury to-
I. Erom the foregoing statement it will be seen that this is an action for common-law negligence, in that defendant received the cattle of the plaintiff to be transported in a reasonable time to Chicago; but that, by reason of the negligent failure so to do, the cattle were kept in transit so long, that plaintiff was damaged by their shrinkage in weight, and that besides was not thereby permitted to get them on to the market at Chicago as early as he had a right to expect, and that by reason thereof he was compelled to sell at a lower rate than he could if the cattle had arrived in the usual time.
Now, while we concede the defendant’s contention that it should not he held accountable for a failure to carry the cattle through at all hazards in the shortest time possible, it will yet be held to the duty of exercising ordinary diligence in transporting the stock without unreasonable delay. And, as the trial court instructed, if the defendants agents and servants used such ordinay care in transporting the cattle under the circumstances, then the defendant would not be charged with the effects of the delay. But where the delay was as here apparently due to such negligence — where the cattle were sidetracked at one place, for example, for a period of six hours under the pretext of permitting another train to pass, etc., then the delay was not necessary or excusable.
What is here said applies too as to the St. Joseph shipment; though it must be admitted the plaintiff did not make so strong a case of unnecessary and inexcusable delay as in the matter of the Lathrop consignment. However, we find ample evidence upon which the finding of the jury can be based.
So then, in our opinion, the trial court fairly submitted the issues to the jury and the verdict has ample support under the evidence adduced. Nor do we find any substantial cause for complaint as to the court’s ruling on the evidence offered.
The judgment will be affirmed.