116 Mo. App. 139 | Mo. Ct. App. | 1906
Action of damages for delay in transporting live stock. On January 19, 1904, the respondent delivered to the defendant, the St. Louis & Hannibal Railroad Company, at Bowling Green, Missouri, eighty head of cattle to be carried to Chicago, Illinois. The cattle should have reached Chicago in time for the market of the succeeding day; but a delay, which occurred within seven miles of the city, prevented them from reaching there until too late for the market and,
“Plaintiff further says that by reason of said delay in the transportation of said cattle and the long stay in the cars without food and water caused by said delay and negligence on the part of the defendant, its agents, employees and servants, there was a shrinkage of thirty-two hundred pounds in the weight of said cattle more than there would have been had they arrived at said destination within a reasonable time and that by reason of the appearance of said cattle caused by said delay and the long stay in said cars as aforesaid, he was compelled to accept as the best price possible, forty-five cents per hundred pounds less than he would have gotten had said cattle arrived within a reasonable time as aforesaid.”
It will be seen that there is no precise allegation that the defendant’s negligence caused the delay, though probably that is the natural inference to be drawn from the language of the petition. The substance of the pleading is that there was a delay in transit which resulted in loss to the plaintiff and that the defendant’s agents and servants were negligent in the matter. Now, the defendant insists that, as the evidence proved that delay was due to the negligence of a connecting company, a verdict against the plaintiff should
By failure to prove “the allegation of the cause of action or defense to which the proof is directed in its entire scope and meaning” is meant a lack of evidence to support the cause of action alleged; not merely a failure to prove some particular allegation. [R. S. 1899, sec. 798.] But even if the discrepancy amounted to a falure of proof, the court had power to set aside the verdict and allow an amendment. [R. S. 1899, sec. 799.] To hold otherwise is to ignore a plain statute. It is my opinion that in view of this statute, in order to obtain a reversal for failure of proof, the party complaining must, at some time and in some definite, and not covert way, direct the trial court’s attention to the matter; instead of keeping silent before and after verdict and first raising the objection on appeal. But I am not sure that the decided cases support this opinion. However, we are confronted with a material variance; not a failure of proof. A variance must be challenged in the manner presented by the statute; but there was no open challenge of this one. The motion in arrest was rather adapted to cover than to expose the point; for the prayer that the judgment be arrested because the petition stated no cause of action, tended to divert attention from the omission to state a cause of action in conformity with the evidence and to rivet the court’s thought on the inquiry of whether it stated any cause of action at all. The rule declared in Mellor v. Railway Company (pp. 466 and 471) that objections must be timely and specific and legal ambuscades in practice ought not to be encouraged, is wholesome; as it tends to
Besides a general denial, the answer avers that defendant carried the cattle from Bowling Green, where they were received, to its terminus at Hannibal, Missouri, on time and there delivered them to the Burlington Kailway Company, which carried them without substantial delay to Chicago', where they arrived during the morning of January 20th; that said morning was dark and foggy and the terminal district and stock yards were wet, muddy and dark, and an unusual quantity of live stock was brought into the yards at Chicago that morning; that this dark and foggy weather made the handling of trains slow and difficult; which fact, and the unusually large number of trains of stock waiting for access to the stock yards, caused an unavoidable delay in moving into the yards the train on which plaintiff’s cattle were carried; in consequence of which, they were not unloaded until about three o’clock in the afternoon.
In further defense, the answer pleads certain clauses of the bill of lading which are alleged to bar plaintiff’s recovery. The reply denies generally the averments of the answer. We copy those portions of the bill of lading invoked as a defense.
“St. Louis & Haninibal Railway Company's Live Stock Contract.
Executed at Bowling Green, Mo., Station, Jan. 19,1904.
“This agreement, entered into by and between the St. Louis & Hannibal Railroad Company, party of the first part and T. B. Ingwersen, party of the second part, this 19th day of Jan., 1904, Witnesseth that
“It is mutually covenanted and agreed by and between the parties hereto."
“That said party of the first part will transport for the said party of the second part three carloads of cattle said to contain forty-eight head together with the party of parties in charge thereof, as hereinafter provided, from Bowling Green, Mo., station to Chicago, Ill., station, consigned to Ingwersen & Jansen at Union Stock Yards, Ill. Subject to minimum weights applying on cars of various lengths as per tariff and rules in effect on the date of shipment, at the through rate of tariff per car from Bowling Green to Chicago, Ill., the same being a special rate, less than the regular tariff rate applying on shipments not covered by the conditions and stipulations herein contained.
“And it is further understood and agreed, by and between the parties hereto that if the destination of the aforesaid stock be located on the line of the St. Louis & Hannibal Railway, then the St. Louis & Hannibal Company agrees to deliver the same at destination after payment of proper charges by said consignee, but if the ultimate destination of said stock be located beyond the line of the St. Louis & Hannibal Railroad, the St. Louis & Hannibal Railroad Company hereby agrees to deliver same to the next connecting carrier; and it is understood and hereby agreed that the St. Louis & Hannibal Railroad Company shall be held liable under this contract only for loss or damage occurring on its own line, and while the said stock is in its actual custody; and that the duty and liability of said company shall absolutely cease and terminate upon delivery of the aforesaid stock to its next connecting line; and when the stock is destined to any point beyond the line of its railroad said first party guarantees to protect the through
“And it is further agreed by and between the parties to this contract that in consideration of the covenants herein set forth, said second party expressly agrees that as a condition precedent to his right to any damage for any loss or injury to the stock shipped under this contract during transportation thereof, he will give notice in writing of his claim therefor, verified by affidavit, to the general freight agent of the said first party, within ten days after said loss or damage has been sustained.”
The testimony for the plaintiff supported the averments that the cattle were delayed in transit an unreasonable time and that they did not arrive at destination until the afternoon of January 20th, too late for the market of that day, and in consequence brought a lower price than they would have brought.
It appears that the plaintiff complained of his loss to the defendant’s station agent at Bowling Green, who told him to put his complaint in writing and submit it to the company, which plaintiff did on January 30th, and within ten days after the loss occurred; but the complaint, or notice of loss, was not verified by affidavit, nor did the. general freight agent of the defendant company receive it within ten days. Plaintiff delivered it to the station agent at Bowling Green and the latter transmitted it to the general freight agent, who got it about the third or fourth of February; that is, some fifteen days after the loss. Without making any objection to the form of the notice, its lack of verification or that it was tardy, the general freight agent acted on it as sufficient, and proceeded to investigate the cause of the delay, which he found had occurred on
It is insisted that, a verdict should have been directed for the defendant because the evidence showed that if the delay in carrying the. stock was due to negligence at all, and not to unavoidable causes, a connecting carrier was to blame; and, as the bill of lading provided that the defendant should only be liable for loss or damage occurring on its own road, it was not answerable to the plaintiff in damages. This agreement in the bill of lading is said to have been supported by a good consideration, as a special and reduced freight rate is recited. We may grant, for argument’s sake, that there is sufficient proof, prima facie, that a lower rate of freig’ht than usual was charged for the shipment, to constitute a good consideration for releasing the defendant from its common law liability. But this action does not rest on defendant’s common law liability as a carrier, but on negligence. In truth, the measure of a common carrier’s liability for delay in the transportation of freight is not the same as its liability for failure to safely deliver the freight. The carrier is
It is conceded that the damages assessed by the jury were reasonable and the judgment will be affirmed.