174 Mo. App. 408 | Mo. Ct. App. | 1913
This is an action against a common carrier to recover damages resulting from negligent delay in the transportation of four carloads of fat cattle to market. The cattle were received by defendant at Stewartsville on-July 3, 1910, for carriage to Chicago and the petition alleges that defendant failed to transport them in accordance with the requirements of the' shipping contract or within a reasonable time, “but on the contrary said four carloads of cattle were negligently and carelessly delayed en route between the points aforesaid and allowed to stand on the track in the cars for a long space of time and in excess of the time required to transport said cattle by the use of ordinary care and diligence. That by the use of ordinary care and diligence said defendant should have transported said cattle to their destination by early on the morning of July 5, 1910, in
' The answer admits the receipt of cattle for shipment from Stewartsville to the, stockyards at Chicago, denies the other allegations of the petition and alleges in substance, that the delay of which plaintiff complains was caused by the necessary compliance by defendant “with the Federal law governing transportation of live stock by common carriers, commonly known as the ‘ Twenty-eight Hour Law.’ ” A-trial of the--,issues resulted in a verdict and .judgment for plaintiff for $250 and the cause is here on the appeal of defendant whose principal contention is that the demurrer to plaintiff’s evidence should have been given.
. The cattle were shipped on train No. 74, which left Stewartsville at nine o’clock p. m. on schedule time. The time tables introduced in evidence by defendant scheduled that train (which was defendant’s best and fastest train for the carriage of live stock from Stewartsville to Chicago) to-leave Brookfield at 2:45 the following morning, Quincy, Ill. at 10:30, to arrive at Galesburg, Ill. at 4:00 p. m., to leave that point at 8:30 p. m. and to arrive in Chicago the next morning (July 5th) at six o’clock — a, total of thirty-three hours. At Galesburg the train was divided into two or three and sometimes four sections, the last section leaving for Chicago at 8:30-.p. m.
The evidence of plaintiff relating, to the usual time consumed in the transportation of cattle from Stewartsville to Chicago on that train does not differ materially from that of defendant. All of the evidence shows that the time was in excess of twenty-eight hours. The train in question arrived at,Brookfield on •time but was four hours late in leaving that place, due’, so plaintiff contends, to negligence in waiting for am
In order to recover the damages he sustained in consequence of delay in the transportation of the shipment, the burden is on plaintiff to show not only an
A delay caused solely by defendant’s compliance with the provisions of the Twenty-eight Hour Law could not be actionable since it should be regarded as the result of the performance of a duty imposed by law. [Ecton v. Railway, supra.] The decisive question in the case for our solution is whether the evidence of plaintiff tends to show the unusual delay of twelve hours in the transportation was caused solely by the necessity of obeying the Twenty-eight Hour Law or was due to negligence.
We may concede for argument, without so deciding, that defendant was guilty of negligence in holding the train at Brookfield four hours but such concession does not carry with it the conclusion that such negligence produced any injurious effect. The train arrived at Galesburg in ample time for the cat-tie to be forwarded on the same train which did not leave Galesburg until 8:30 that evening and arrived at Chicago on schedule time and, of course, in time for the market of July 5th. Had plaintiff filed a written request for the cattle to go through without stopping for rest they would have made the journey on schedule time and within thirty-six hours. They would have gone forward on the same train that would have been employed in their transportation had they arrived in Galesburg on time. The unusual delay in arriving at Chicago, therefore, could not have been caused by the stop in Brookfield, and the failure of defendant to forward the cattle from Galesburg on train No. 74
Nor may it be said with reason that defendant detained the cattle in' Galesburg longer than was necessary to perform the duty imposed by the statute. They were forwarded on the first train that carried live stock and in failing to file a written request for a through shipment, plaintiff must be held to have contemplated that the regular service would be employed and that the cattle would not reach Chicago in time for the market of July 5th. Certainly it would be unreasonable to hold that defendant was bound to forward the shipment by special train. Clearly the delay was caused by the action of plaintiff in electing to have the cattle unloaded in Galesburg for food, water and rest, and not to any negligence of defendant. The learned trial judge erred in overruling the demurrer to the evidence.
The judgment is reversed.