69 Mo. 589 | Mo. | 1879
The petition states substantially that on the 11th day of September, 1875, plSintiffij were the owners of seventy-nine head of cattle, which were then ready for market, and defendant was then a railroad company and common carrier from Laddonia, in Audrain county, Missouri,. to Chicago, Illinois; that on said day plaintiff's delivered said cattle to defendant at Laddonia, and defendant promised, for compensation paid it, to convey them, without delay and in a reasonable time, to Chicago; that under the directions of defendant, plaintiffs loaded said cattle on the cars provided by defendant; that defendant did not forward said cattle as agreed, but negligently permitted them to stand in the cars at said station for ten hours after they had been loaded and should have been on their way,
The evidence tended to show that plaintiffs’ cattle were loaded at Laddonia, a station on defendant’s road, on Saturday, the 11th day of September, at 9:55 a. m., for shipment to Chicago, to be carried on a train of defendant due at said station about that time; that the train by which they were to be shipped did not arrive on time, in consequence of detention at Mexico waiting for stock that had been delayed on the St. Louis, Kansas City & Northern Railroad ; that, the train did not arrive till six o’clock in the evening, at which time the cattle were shipped without further delay, arriving in Chicago at 8 o’clock p. m. on Sunday, and that, but for the delay at Laddonia, they. would have reached there at 12 o’clock m. on the same day. A special contract for shipment of the cattle was introduced, in which it was agreed that plaintiffs should, not
The evidence, we think, was clearly inadmissible, for the reason that the true measure of damages was the difference betweeu the market price of the cattle r when they did arrive, and when they should have arrived at their destination, and the difference between the actual and usual shrinkage of the cattle. Sturgeon v. R. R. Co., 65 Mo. 570. The question for the jury was not the difference between the price of cattle on Tuesday, when plaintiff' sold them, and the price when they arrived, but the difference between the price- when they arrived at the place of destination and when they ought to have arrived, had there béen no delay. The evidence was calculated to mislead the jury, -and doubtless did mislead them. There was not a particle of evidence showing any difference between the price when they arrived and when they ought to have arrived; hence the jury could. not have allowed any damages to plaintiff's on that account. Under the evidence, all that they could allow damages for was the difference between the usual and actual shrinkage.' This was shown to be thirty pounds per head, which, at 4-£ cents per pound, the price of cattle when they arrived, would be $1.25 each, or for the total number, seventy-nine head shipped, $98.75. The verdict was for $280, hence the conclusion is irresistible that the jury musthajgi considered and been misled by the evidence thus received,.
The error in receiving it was not cured by the subsequent direction given by the court in one of the defendant’s instructions, that if they believed that hhe cattle market was as good in Chicago at the time the cattle arrived there as when they should have arrived, plaintiffs could not recover on account of any difference in the market; for the improper evidence thus admitted was. not withdrawn from théir consideration. Had that been done in the instruction, the verdict could be maintained on the theory that the jury did not consider the evidence, and the error would be cured. Judgment reversed and cause remanded.
Reversed.