| Mo. Ct. App. | Feb 21, 1910
Action for damages suffered by delay in the transportation of a carload of eighty-three hogs, shipped from LaForge, in New Madrid connty, to East St. Louis, Illinois. It is averred the usual time for transportation between said points was twenty-four hours, but about fifty hours were consumed in transporting plaintiff’s hogs; that in consequence eight of them died en route, causing plaintiff to lose $172.90; the remainder sold at ten cents a hundred pounds less than they would have brought if in good condition; that said condition was due to their being stiff and sore, thus causing a loss to plaintiff of $19.26; that the market for hogs like plaintiff’s had gone down fifteen cents a hundred pounds during the delay, thereby entailing a loss on plaintiff of $28.89, and the hogs which went through lost 1500 pounds in weight, whereby plaintiff was damaged $99.75.
In this case, and probably in half those submitted to us, an assignment of error is made which comes down to a demand that we weigh conflicting testimony, and it seems impossible by endless iteration to induce counsel to refrain from urging this contention. The evidence is overwhelming in the present case to show a delay occurred in the transportation of the hogs and damage was suffered in consequence.
It is further contended that though the only cause of action declared on in the petition was negligent failure to transport the hogs from the point of shipment to destination in twenty-four hours when by reasonable diligence this could have been done, instead of fifty hours being consumed, the court allowed plaintiff to recover for other reasons, and this point is well taken. The first declaration of law granted for plaintiff permitted a recovery not only in the event defendant was found to have delayed the carriage of the hogs from negligence, but also in case it was found the employees of defendant injured the animals while loading or unloading them on the way. As nothing was said about
The judgment is reversed and the cause remanded.